The Sun.
London, England, 1860-12-20 00:00:00

THE SLTN, LONDON, THURSDAY EVENING, DECEMBER 20, 1860.

LAW INIELLI9ENCE—Dec. 19.

COURT OF EXCHEQUER.

(Sittings at Nisi Prius, at Guildhall, before the
Lord Chief Baron and a Special Jury.)
MAY Y. E, T. SMITH.
Mr. Sergeant Shee, Mr. Huddleston, Q,C., and
Mr. C. G. Merewether, were counsel for the plain-
tiff; Mr. Edwin James, Q.C., Mr. Hawkins, Q.C.,
and Mr. Bowen appeared for the defendant.
The declaration stated that the defendant, by an
agreement between himself and the plaintiff, agreed
to employ and engage the plaintiff's wife to sing as
prima donna at her Majesty's Theatre, or at con-
certs if not singing there, for the season, com-
mencing the Ist of October, 1860, at a salary of
15 guineas a-week ; she aMding by the rules and
regulations of the theatre ; and although the season
had commenced, and an opera called " Robin Hood"
had been played, in which the plaintiff's wife ought
to have been employed to sing as prima donna,
according to the agreement, and although she was
at all times ready arid willing to sing, yet the
defendant would not suffer her or permit her
to do so, and wrongfully employed Madame
Sherrington to sing as prima donna in the
said opera. The second count charged that the
plaintiff's wife was engaged by the agree-
ment to play in " Robin Hood," among other operas,
and the breach alleged was that the name, fame, and
reputation and credit of the plaintiff's wife as an
actress and public singer had been injured, and that
the public had been led to believe that she was not
so competent to perform and sing as prima donna
as Madame Sherrington, whereby the plaintiff had
been deprived of the profits, &c.
The defendant pleaded 11 pleas, and paid 45
guineas into court.
Mr. Sergeant Shee, in opening the case, said that
the plaintiff was the hasband of a young lady
known to the public as Mademoiselle Jenny Bauer,
and occupied a high position in the musical world,
having had engagements of the highest class, not
' only in this country, but in most of the first opera
houses on the Continent. The plaintiff and defen-
dant had long been upon intimate terms, and it
was to be regretted that their association had been
interrupted by the present action. The action was
not brought only for compensation in damages, but
from a desire that Mrs. May might set herself right
in the opinion of the public—an all-important mat-
ter to her. She wished to vindicate her proper
position, which had been injured by the breach of
the contract in not employing her in English opera
at Her Majesty's Theatre. She complained that
being engaged as prima donna, the defendant did
not only not give her that position, but no other.
He had engaged a lady of the highest talent, ad-
mired by no one more than the plaintiff's wife, to
play in Robin Hood" as prima donna. In 1855,
when Mademoiselle Bauer was only 19 years of
age, she had been engaged at the Royal Italian
Opera, under the management of Mr. Gye, as prima
donna, and the following year had appeared at
Drury-Lane, under the defendant's management, in
the same capacity, in " L'Etoi:e du Nord." In the
middle of the present year Mrs. May wrote to the
defendant, asking him for a box for the Italian
Opera, and on the 3d of August the defendant
wrote to her husband apologising for not having
answered it, beginning " My dear Ned," and
saying that if he could, he would put the
" Mrs." well forward in English opera at
Her Majesty's, and asked what he, would
charge for her services. This was replied to by the
plaintiff in a letter of the same date, commencing
"My dear Governor," and stating how gratified he
was at the receipt of the note, and requesting him
to name his own terms, which he would accept
without a murmur. The defendant replied :
" Business is business, although friendship cemented.
Sires Reeves is so delighted with the new opera he foregoes
the opera he intended opening in. It is a grand, very grand,
thing for a prima donna to appear in, and such a part, so
suitable to Jenny. Of courso, I tell you that they want me
to engage Sherrington for it. She is dying to come from
'Brussels. I say Jenny Bauer. Now, let me know salary
for the season—Octobilr to March, with short interval ; and
if it succeeds, how much then. Hirst contract, friendship;
second contract, business."
The letter finishes, "Waiting answer—merely
figures."

The narrative of the case can be gathered from
the evidence of the plaintiff who, upon being called,
said,—l am principal clerk in the Commissioners of
Police-office inf, Whitehall, and the husband of
Jenny Bauer. 'I have known the defendant for 25
years. I knew that my wife had applied to him
for a private box by letter. I received a letter on
the 2d of August and replied to him on the 3d, and
he sent another letter the same day. In conse-
quence of that letter I saw him immediately. Smith
said he was much pressed by business, and asked if
I had read his letters. I said " Yes." He said,
" What do you say—a fine opportunity for Jenny
—a fine opera—be the making of her. Sims Reeves
and other great artistes engaged. It will be a great
success." He said, " What are your terms ?" I said,
" Am I to understand that you will do everything
that lies in your power to advance the position of
Mrs. May and to pace her as prominently before
the public as possible, and that she makes her ffrst
appearance in " Robin Hood" in the part of Maid
Marian ?" He said, " Yes." I considered for a few
minutes and said, " The terms I ask, under those
circumstances, are 15 guineas a week ;" that was
less than she had received when in England before.
He made no reply, but wrote something at his desk.
It was the engagement. He said, " Will that do ?"
I said " Yes." Then he said, " Give it me back, and
I will add concerts' to it." The agreement was—
"l hereby engage Mrs. May (Jenny Bauser) to appear
as prima donna at Majesty's Theatre, or at concerts if
not singing there, for the season commencing Oct. 1, 1860,
at the salary of 15 guineas per week, paid weekly. Mrs.
May to abide by the rules and regulations of the theatre.—
August 3, 18G0. "E. T. Smiru."
He then handed back the agreement. He said,
" I have one act of the opera. It is very beauti-
ful; come round and look at it." I said, "It is
ridiculous to ask me, as I know so little about
music; almost as little as you do yourself." He
said " I ought to know something about it, as I
dropped £lO,OOO last season." I said, " You had
better give me the cast of the opera, as it will make
Mrs. May much more satisfied." He wrote the
names down ; we then parted. In August I received
a note or message, saying that he wished to see me.
I went. He said, " Where's Jenny ? Did you get
my letter?" I said, " No, I had not." He said,
" Sims Reeves and Mr. and Mrs. Macfarren are
here, and would like to hear her sin,:r." I said it
was impossible. She was with her parents at St
John's wood. An appointment was made and we
attended, Mr. and Mrs. Macfarren, Mr. Beak, &c.
On that occasion she sang an aria from " Der
Freischutz," and also a part of a ballad from
" Satanella," " The Power of Love." I was com-
plimented on her voice by Mr. Chappell and others.
Defendant came forward and said, "My mind is
made up; Jenny Bauer is to do Maid Marian."
Chappell said, " Who is to do the second part ?"
and defendant said, " Madame Allessandri." When
leaving I said, "Have you anything further to
say ?" and he replied, " No." Mrs. May went to
the Isle of Wight, and I wrote to him. He wrote
me on the 3d, asking her to get up some parts in
Italian operas. I wrote asking if the score of Maid
Marian was ready, and he then wrote saying they
would have Madame Sherrington. I wrote a letter
of expostulation on the sth of September. I heard
nothing from the theatre until I received a letter
of the 12th of September from a Hr. Mapieson. I
had received a portion of the score before it, and a
second part with it. I answered the letter. On
the 14th he wrote again. On the 23d of Sep-
tember I saw by the bills of her Majesty's
Theatre that Madame L. Sherrington was adver-
tised for Maid Marian in " Robin Hood." I then
wrote to the defendant complaining of his unjust at-
tempt to deprive my wife of appearing in " Robin
Hood." No notice was taken of it. The next inti-
mation was on the 9th from M. Grua, wishing her
to be on the stage during the singing of the Na-
tional Anthem after the opera. I replied to it say-
ing that I had received no answer to my previous
letter. She did not go. Madame Sherrington
appeared and played the part. No offer of any
principal part has been made to my wife. She has
had no opportunity of doing anything under the
contract. I then instructed my attorney to com
mence this action.

Cross-examined by Mr. Edwin James—No Eng-
lish opera has bean played but " Robin Hood," and
it was running when this action was brought. Her
engagement did not extend to Italian opera. The
opera opened on the 10th, and I brought my action
on the 22d. " Trovatore" was played first. " Robin
Hood" on the 11th—played three times a week.
(Paper handed to the witness). This is the contract
I signed, dated Aug. 3. It was signed before Mr.
Smith had written the addition. I asked first what
would be the cast of the opera, and he wrote out a
probable cast. Some of the haracters have been

changed. He expressed himself anxious to help my
wife. She had not sung in England since 1856.
She had been singing last year at Berlin. She had
not bees singing on the stage there. We were mar-
ried last May twelvemonths. She has not sung
except at concerts, Manchester and other places.
She received an intimation to be on the stage for
the National Anthem. It is not usual for prima
donnas to appear unless they have a verse to sine.
She declined to go, and leoked upon the request
almost as an insult. If the letter had stated that

she was to have had a verse, she would have gone.
She never went. Having no part assigned to her,
I thought she had no occasion to go. She was being
put in the light of a supernumerary to fill up space
on the stage. I never went near the theatre fob• the
salary or anything els?, bat liayelought an action
for three weeks' salary. I am not aware that it is
usual for a prima donna's part to be studied by
some one of equal reputation, in order to be ready

for an emergency. (A bill large enough to carpet
the court was here produced, in which the nameß of
Madauic I%AI q,a m biuc and Macii,,rde jenny Bauer
and Sims Reeves in mauve appeared.) There
was to be a trial on the stage. It was arranged
that she should sing a ballad called " Beautiful
May," written by tire ootnposer of " Robin Hood."
Some other ladies were there. She did not sing
the ballad. She applied for it to Chappell and
Beale, and it could not be got on the original key.
They wished to hear her in a ballad, and she sang
the first verse of " The Power of Love," but could
not remember it all. There was neither music nor
words. The other ladies sang. They brought
their music with them.

Re-examined. The defendant wrote " Maid
Marian" on the paper after he had signed the con-
tracts. She had an offer from Mr. Gye to sing.
She could not go owing to her accouchement. She
did not wish to sing in Italian if she could have
sung in English.
Mrs. May was then called, and said,—l appeared
on the stage before I was 19. I had an engagement
at the Royal Italian Opera at 25 guineas a week,
and I was engaged at £l2 a week by defendant in
" L'Etoile du Nord." In 1856 I was engaged at
her Majesty's at £BO a month, and afterwards at
Stuttgard at £26 a week. In the same year I was
prima donna at Vienna. I was ;paid so much a
part. In 1857, 1858, and 1859 I had an engage-
ment as prima donna for eight months, and received
4,000 dols. It is usual when an artist gives satis-
faction to receive the compliments of the Royal
family, and I received a letter. We were on inti-
mate terms with the defendant, and I wrote a note
for a box. He wrote to my husband in 1859 about
my accepting an engagement at £lOO a month. It
was not carried out.

The rest of Mrs. May's evidence was in corrobo-
ration of that already given by her husband.
It may be added that Mrs. May had studied with
the score that had been sent to her of the part of
Maid Marian, and was prepared to go on with the
rest of it.

This was the plaintiff's case.
Mr. Edwin James submitted that the plaintiff
had made no case. There was no contract that
Mrs. May should appear as Maid Marian in " Robin
Hood," and certainly not that she should appear
on the first night of its representation.
The Lord Chief Baron.—l have been considering
the agreement, and my impression is that the con-
tract does not contain in point of law any agreement
t 3 employ the plaintiff's wife in any particular way
whatever. I .can only view it as I would any other
contract, without reference to the position of the
parties.

Mr. James—The action is prematurely brought.
The writ was issued two days after the first repre-
sentation, Mrs. May has received her salary. If
a manager chooses to engage three or four prima
donnas, surely it is optional with him to say which
of them he shall employ. They bring the action on
the 22d, it was not plain that Mr. Smith did not
intend to employ her. If he intended to play
" Robin Hood" first with Mrs. Sherrington as Maid
Marian, and then afterwards with Mrs. May, it was
competent for him to do so.

Mr. Sergeant Shee—l submit that the objection
fails. There was no communication that she would
be required; her services were entirely set aside,
and the plaintiff had no alternative but to bring
this action.
The Lord Chief Baron—ls there in an agreement
like the present any undertaking on the part of the
defendant actually to employ, so as to render not
absolutely useless the terms of the contract.
Mr. Sergeant Shee—l say there is a loss of repu-
tation in not being adequately employed.
The Lord Chief Baron.—lf you can show that a
manager maliciously engaged a person with the
intention of not employing him, then I think, but. I
am by no means state, that, if it could be proved, he
would be entitled to recover against him.
Mr. lluddlesten was heard for the defendant.
After Mr. James had replied,
His Lordship said he thought there was nothing
to go to the jury, as nothing had been proved.
The plaintiff's claim for salary had been satisfied by
payment into court.

The plaintiff was nonsuited. The matter to be
referred if necessary, and execution stayed.

ASSIZE INTELLIGENCE.

NORTHERN CIRCUIT.—LIVERPOOL, DEC. 17.
(Before Mr. Justice Keating.)
Wm. Thompson, James Whalley, and Joseph
Phipps were charge with a garotte robbery on the
rerson of Mr. Scully, an auctioneer, at Manchester,
on the 28th of September last.
Mr. Sowler conducted the prosecution; Mr.
Torr appeared for Whalley ; Mr. Charles Hopwood
for Phipps. The other had no counsel.
The prosecutor was proceeding homewards about
midnight, when he was attacked near an entry by
three men, dragged into it, half strangled, robbed,
and left insensible. A policeman came to the spot
and assisted him homewards. Shortly afterwards
the same constable took Thompson into custody ; in
a fortnight Whalley, and in seven weeks after
Phipps was taken. The prosecutor could swear to
none of the prisoners. The policeman swore posi-
tively to all three, having had, as he said, a look at
each stooping- over the body of the prosecutor. A
girl who was near the spot also swore to both
Whalley and Phipps as taking a prominent part in
the outrage.
The learned counsel for the prisoners addressed
the jury, and called witnesses to prove that each of
their clients was in another place at the time of the
robbery.
The witnesses were severely and acutely cross.
examined, but at the end of their evidence the jury
announced that they had made up their minds' that
it was a case of mistaken identity.
The Judge said if they thought that as to Whal-
ley and Phipps, he presumed that would affect their
minds as to Thompson.
The jury said that was so.
The prosecution then withdrew from the case,
and a verdict of not guilty wes returned as to all
the prisoners.
The grand jury, having brought in the remainder
of the bills, were to-day discharged by his lordship
with a few words of congratulation.
Seventeen prisoners have been added to the list
since the beginning of the assizes.
John and George Robinson were indicted for
having assaulted Police-sergeant Bent while en-
deavouring to effect the lawful apprehension of the
prisoner John.
Mr. Pope prosecuted, and the prisoner George
was defended by Mr, Wheeler and Mr. Oats.
The case excited considerable interest in conse-
quence of the prisoner John being a man of despe-
rate character and an escaped convict.
It appeared that Bent, accompanied by another
officer, went to the house of the prisoner's mother
on the 29th of August, at four o'clock in the morn-
ing, and having demanded admission under a threat
of breaking open the door, they were admitted by
the prisoner George, who found them a light. The
officers went into the parlour, where Bent seeing
John under the sofa attempted to pull him out by
the legs. The prisoner John then seized a life-
preserver, according to Bent's account—a riding
whip by his own account—and struck Bent a
severe blow over the eye. He afterwards struck
him repeatedly over the head, while the other
officer Shirley stood by and received several blows,
but did not, as,he himself said, strike any blow.
George and his sister came to the assistance of
their brother, and George struck both officers seve-
ral very severe blows over the head with a poker.
Bent succeeded, nevertheless, in dragging the pri-
soner out of the house, when, in consequence of the
severe injuries he had received, he fell exhausted,
and the prisoner escaped. Bent was much beaten,
and for six weeks unable to do duty. The prisoners
were ultimately captured.
For the defence it was objected that there was
no legal evidence of the previous conviction and
escape of John ; that the officers, being without
warrant, were acting illegally, or, at all
events, it was riot proved that George had
any knowledge of the lawfulness of the arrest, as
there was some evidence that John had been secretly
let in by his sister after the family had gone to bed.
His Lordship overruled the objections.
Mr. Wheeler addressed the jury.
The Judge summed up, and
The jury returned a verdict of Guilty against
both prisoners.
The prisoner John, on hearing the verdict, ap-
peared much excited. He gave utterance to very
strong language against the police and jury, which
he expressed, for the most part, in rhyme, with
considerable fluency, and gave, in some instances,
indications of aberration of mind.
Sentence was deferred.
YORK, DEC. 18.
(Before Mr. Justice Hill.)
Mark Rawlins, a bank clerk, was indicted for
stealing three several sums of £l5O, £l6O, and
£55 from the Sheffield and Rotherham Joint-Stock
Banking Company, his employers.
Mr. Meath appeared for the prosecution ; Mr.
Price and Mr. Waddy defended the prisoner.
It appeared that the prisoner had been seven
years a clerk in the Sheffield and Rotherham Joint-
Stock Bank' in which he was cashier. In 1853 an
account had been opened at the bank in the name
of Benjamin Rawlins, the prisoner's father. He
died at the end of that year, and the account of
Benjamin Rawlins was transferred into three
names, of which the prisoner's was one, as his exe-
cutors. In 1854 there was a credit to these execu-
tors of £6O at the bank, and they were allowed to
overdraw the account £9O, on the prisoner and his
mother giving a promissory note as security. In 1

1855 this was paid off and the account afterwards
W 951 on the credit side till liViS Tn D.p.rnhcsl%
1659, the lcc:nint mail ue,;,. ;Lt.-
amount of £351 by the prisoner drawing checks
and cashing them himself, and crediting himself
as cashier with the payment of these checks;
and this proceeding up to that time seemed not
to have excited the attention of the manager, Mr.
Brown, although he ought to have had the
authority of the manager for cashing these
checks ; these payments were entered in the loan-
book in the ordinary way, to which the manager
had access. In September last his account was
found to be overdrawn £631, and subsequently to
the amount of £931. Mr. Brown, the manager,
then sent for him, and had a long discussion with
him as to what he had done with the money. He
said he had sent £3OO to America, and had
frittered the rest away. He begged for time,
asked for a loan, and ultimately begged for mercy
for the sake of his wife and child. He was then
given into custody. For the defence it was elicited
that, as to .£3sl,part of the sums laid inth& indict-
ment, Mr. Brown knew of this amount being over-
drawn, treated it as a debt, and charged hm
interest upon it; that as to the remain'ng sum of
£55, the prisoner had himself furnished the means
for ascertaining this deficiency in his cash drawer,
and said he had lent it to Anderson. It did not
appear who Anderson was. On the cross-exemina-
tion of Mr. Brown, it appeared that for months he
had not inspected the loan book, or the prisoner's
account, and it was contended that in the face of
such negligence and remissness, it was monstrous
to turn round and cast all blame on the prisoner
for the natural consequence of it. The prisoner
had entered all the transactions in the bank books,
and he had a right to presume th:at :the manager
did his duty, and saw these entries, and therefore
sanctioned his overdrawing his private account;
otherwise, if he suspected anything wrong in this
clerk at £l4O a-year getting so much into the debt
of the bank, he ought to have at once made
inquiries about it.

His Lordship, in slimming up to the jury, said it
appeared from the evidence of Brown, the manager,
that he had not seen the prisoner's accounts from
December, 1859, to December, 1860 ; and it was a
question whether the negligence the gross
negligence of the manager, had not tempted the
prisoner to do what he had done. His lordship
then left the question to the jury, whether on the
facts proved the prisoner had taken these sums
dishonestly, im taking them 'without the knowledge
and sanction of the manager.
The jury having retired, on their return they
found the prisoner Not Guilty.
James Clarke was indicted for forging and
uttering a certificate or paper writing, with intent
to defraud the British Industry Life Assurance
Society.
Mr. Shaw and Mr. Blackburn appeared for the
prosecution ; the prisoner was undefended.
It appeared from the evidence given in the case
that the prisoner had been for three years agent
for the company at Wakefield. The company are
in the habit of issuing policies for small amounts
at a small weekly premium, end it was the duty
of the prisoner to collect these premiums and to
advise the office of the non-payment of them. If a
policy lapsed owing to non-payment, if the insured
persoa forwarded a declaration of health the office
would revive the policy on payment of all arrears.
It appeared that a man named James Carter, whose
life had been insured for £l2 by his mother, lived
in Wakefield, and the policy was allowed to lapse,
but on the 4th of September the prisoner wrote for
a revival and sent a declaration of health purport-
ing to be signed by the mark of James Carter, but
in the prisoner's handwriting, and the policy was
revived on the .6th of September, James Carter
died on the 12th of September, and the prisoner
forwarded a claim from Mrs. Carter, to which was
appended a medical certificate to the effect that
her husband died on the 12th, after an illness of
10 days ; the company's secretary, Mr. Kew, wrote
to the prisoner and blamed him for his careless-
ness and neglect in not having properly ascertained
the state of health of the insured. The prisoner
fearing dismissa , wrote to and informed the com-
pany that in fact the deceased was not ill till the
Bth, and was working up to that time. The com-
pany required a certificate from the man's mas-
ter, and the prisoner sent them one, which stated
that the deceased left work on the Bth of Septem-
ber. The certificate on the face of it was suspi-
cious, and the company investigated the matter,
when it was ascertained that the prisoner had sent
Mrs. Carter to the foreman of the works, where the
deceased hall worked, who gave her a certifi-
cate stating that the deceased left work on the 4th.
For some reason the prisoner was not satisfied with
this, and sent Mrs. Carter for another certificate,
with a request that the "4" might be made larger.
Another was given and the prisoner altered the
figure " 4" to the figure " 8."
The prisoner was found guilty, and sentenced to
nine months' imprisonnient.