The Sun.
London, England, 1857-02-17 00:00:00

HOPE ♦. HOPE.

This was an appeal from a decision of the Master of
tho Rolls overruling a demurrer. The bill is filed by
Madame Emilie Melanie Mathilde Hope by her next
friend against Mr. Adrian John Hope, her husband,
praying the specific performance of an agreement. The
bill states that the lady is a native of France, and was
married to Mr. Hope, an Englishman, in England,
whence the parties removed to France, and resided on
the Quai D'Orsay, in Pari, the husband having become
domiciled in France, and that five children were born.
In 1853, in consequence of disputes, they agreed to part,
and he sent the children to England, but in May the t
younger, Adrian Elias and Jean Henry, were brought
back and give❑ into her custody until the latter was
again delivered over to the father. In August the wife
commenced proceedings in England for a divorce for
cruelty and adultery, and he put in a responsive allega.
tion. Proceedings were in November taken in Chancery
for the delivery up of the children, and certain orders
were made, and an appeal presented to the House of
Lords, but subsequently abandoned on the signing of an
agreement. The lady obtained a decree of the Court of
First Instance in Paris for the delivery of the children
to the husband, from which the lady appealed, but be-
fore it was heard the husband proposed an agreement,

and the appeal was abandoned: The bill then set out
the heads of the agreement, which were afterwards re-
duced to form and written in French, and, as translated,
were as follows :

" 1. Mrs. Hope will immediately deliver up to Mr. Hope
Mr. Adrian Elias Hope ; Mr. Jean Henry Hope will re-
main under the care of his mother. 2. Mrs. Hope will

abandon her suit fora divorce instituted against Mr. Hope
In the English courts, and for that purpose she binds her-
self to sign without delay all such deeds and documents as
may be required. 3. Mrs. Hope undertakes not to oppose
the suit for a divorce instituted against her by Mr. Hope
in the English courts, but, on the contrary, to facilitate
the obtaining of such divorce. It is well understood that
Mrs. Hope shall be able to see her children, to write to
them, and to receive letters from them. 4. Mr. Hope
agrees to pay in France to Mrs. Hope the annual sum of
75,000 f. in accordance with the decision of the Ecclesiasti-
cal Court, to be paid quarterly and in advance. 5. Mr.
Hope undertakes to pay, first, the expenses incurred in
England for Mrs. Hope ; and, secondly, Mrs. Hope's debts
in France, but on condition that such debts shall not ex-
ceed the sum of 60,000 f. These payments to be made by
the hands of Mr. Hope's agent. 6. With regard to any
accounts that may bo unsettled between Mr. and Mrs.
Hope, as well as to the banding over to Mrs. Hope of any
articles that may belong to her, the parties agree to leave
the matter to be settled by Messrs. Faillet and Duvergier,
whose decision shall be final."

The bill proceeded to say that Mrs. Hope strictly per-
formed her part of the agreement, withdrew her appeal
to the Imperial Codrt in Paris, and took no furthersteps
in the Ecclesiaqtical Court in England, and delivered
Adrian Elias Hope to her husband. She also withdrew
her appeal to the House of Lords. Mr. Hope, however,
has not permitted her, excepting upon one occasion, to
see her children, and has not paid any part of the allow-
ance of 75,000 f., nor paid any part of her debts or ex-
penses ; and she further says " that her husband resides
in London, and, by his refusal to perform the agreement,
she is left in a state of destitution, and that, if a suit
could be instituted by her in France, the Court there
would, under the circumstances, order the allowance to
be paid." She asserts that it was the intention of both
parties that the agreement should be binding both in
England and France. The bill, as before stated, prayed
a specific performance of the agreement. The Master of
the Rolls overruled a demurrer, considering the point
teo important to be so decided, and, on appe'tl to the
Lords Justices on the 16th of July,
.1856, gave leave to
amend the bill ; and that having
.been done a demurrer
was put in, and brought on before this court ; and hence
the present appeal.
Mr. It. Palmer, Mr. A.mphlett, and Mr. Kenyon ap-
peared in support of the demurrer, and argued that the
contrast was one to be interpreted here and according to
the law of England, by which law, in all oases of a sepa-
ration between husband and wife, the intervention of a
trustee was necessary, the covenant of whom with the
husband to bear him harmless from the debts of the wife,
alone raised a sufficient consideration for the contract.
Beyond this it was impossible for a man to make a con-
tract with his wife. The contract was in itself illegal,
for the parties agreed to do all in their power to "facili-
tate a divorce," which could mean nothing less than to
obtain a decree by collusion. Moreover, the Court would
never decree the performance of an agreement, the whole
of which it would not enforce. If the view of the plain-
tiff was correct, and her claim was for money to be paid,
she had a right in a court of law to enforce it, and should
not have come into equity.
The Attorney-General, for the plaintiff, said that the
allegations in the bill, grave and serious as those allega-

tions were, were by the fact of the demurrer admitted-to
be true, and thus Mr. Hope admitted that his wife had
given up her proceedings in Paris and London, and had
duly and faithfully handed over the children to their
father, or at any rate all but one child, and yet she had
received no benefit from her compliance with the terms
of the agreement. She had, therefore, been—and no
milder term was at all appropriate to the case—she had
been cheated out of her children, cheated out of her suit
for divorce, cheated out of her appeal to the House of
Lords, and last of all cheated out of the money which
her husband contracted to pay her. Nothing seemed to
be a sufficient inducement to Mr. Hope to pay the 2,0001.
a year which he had solemnly contracted to pay. All
things could be done but to part with the money, and
this unhappy lady was left, as she stated in her bill, and
which statement bad by the demurrer been admitted by
her husband to be true, in a state of destitution.
Lord Justice Knight Bruce—l should have thought
that such a thing as money would not have been per-
mitted to have any place in such a case.
The Attorney General argued that the contract was
one capable of being enforced in this country.
Mr. Terrell followed on the same side, and contended
that all the executory part of the contract could, upon
the authorities, be enforced in England.
Lord Justice-Knight Bruce said that their lordships
were of opinion that if the contract was to be interpreted
by English law the Court could not act upon it. The ques-
tion was whether the French law had been sufficiently
alleged on the bill, and on that the reply would be heard.
Mr. Roundell Palmer was heard in reply on this
point, contending that nearly all the artio:es of the agree-
ment were to be performed in England, and the stipula-
tion that the money should be paid " in France" was
not enough to make it a French contract, and also con-
tended that upon the true construction of the agreement
the payment of the 75,000 f. was not intended to com-
mence until the divorce decree had been made.
Their Lordships reserved judgment until Friday week.

VICE-CHANCELLOR'S COURT.
(Before Tice-Chancellor Sir R. T. Kindereley.)

IN BE THE ROYAL BRITISH BANK, EX PABTE WALTON

AND HUE.

Mr. Baily and Mr. W. Morris were heard in continu-
ation of these adjourned summonses on behalf of Mrs.
Hue, and argued that where no custom was found waiv-
ing a particular form then you must find a special act
quoad a particular person ; but where a custom and
practice was universal it was not necessary to prove a
particular case, but the practice rendered the transaction
valid, and therefore the transfer of Mrs. Hue's shares
was valid.
The Vice-Chancellor said that in all the cases which
had been referred to the party (the transferee) had been
treated by the company, or its officers, as a shareholder.
Mr. Baily—lt was essential that the broker should in
all respects be able to represent the directors in buying
and selling shares, and therefore it mattered little whe-
ther the names were given or not. Under the Winding-
up Act the Court had power to administer the equities,
and therefore in equity the purchaser of these shares
must be regarded as a shareholder of them. Under the
7th and Bth Victoria, cap. 113, sec. 23, a party had the
power to sell his shares without the consent of any com-
pany. Now, here the consent of the court of directors
was necessary, and the sale and transfer being one act,
and notice having been given of the sale, the sale took
place, and therefore it must be assumed that the neces-
sary consent was given. The same form was pursued in
almost every case. Saunderson's case was an authority,
that a party became a member of a company when he
entered into a binding contract to take shares, and that
bad been done here.
Mr. Glasse was heard in reply, and called Mr. Paddison
the secretary, who was examined as to the mode of con-
ducting transfers, and he spoke to letters having been
received from parties wishing to transfer when the trans-
fer was conducted by hi►n and the transfer clerk, and
submitted to the board, and the seal was affixed when
the transfer was sanctioned, and the respectability of
parties was inquired into by the directors fr.m the trans-
fer clerk. The directors had never refased to allow
transfers before Sept., 1856, although where parties were
debtors to the bank the right to refuse was spoken of.
Mr. Giffard then cross-examined Mr. Paddison, who
denied any discussions as to putting a stop to transfers
and sales in his presence.
Mr. Gatherer, the transfer clerk, was also examined
viva voce, on the same subject, and deposed that no trans-
fer was ever completed without the consent of the direc-
tors—that is, he would not have his certificate. In every
case notice was given to the board.
Mr. Giffard—That is enough; we gave notice.
The -rice-chancellor said that it was somewhat unfor•

tunate that here the witnesses contradicted the admission
of the parties. His Honour then questioned the witnek.
as to the notice in Walton's case, and Mr. Gatherer did
not recollect the applications said to have been made.
The case then stood over for the purpose of examining
the party making the admissions.