The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-05-20

va: not an e.sentia! part Of tho contract Ifthsrs
pay there might be something Of which the defend
ants had reason to complain but there was nothing
to justify the course that had been taken by the de-
PENDANTS, and which could only have boon adopted
in consequence Of listening 70 tho
that had been made to them, and their ignorance Of
English customs and English law. II was by no
means condition precedent that the money should
be paid down. but if it was, their friend and agent
DIR. Baoher had the money in his hands ready to
| pay them, and it would be necessary to sus-
tain such an objection as no (Mr. Bscon)
anticipated would be made on the other side
Mr.. Lumley for the money, and declared that they
| were not content with the reference to Dr. Bacher
Was it to be said that the plaintiff was not in
position to enforce the agreement. unless the E300
ment of the money on that day formed tho very
| essence of the agreement He submitted that the
contract in that respect fully complied with,
| and that tender of the money had been made to
| the defendants Johanna and Albert, in sufficient
| time to enable them to como to England and per-
form the contract. If there was no other or more
just ground for resisting tho performance of tho
agreement, only remained to be if tho agree
ment was one which the court would enforce to pre-
| vent the defendant Johanna from acting in the
| Opera House, Covent Carbon. All the cases on the
subject reviewed in the of "Dierichssn vs.
Cabburn;" and in that it was most distinctly
decided that whore as in the present case, there
was negative term in an agreement to which no
objection could be takon the Court would interfere
by Injunction to prevent the defendant from break
ing the engagement. He called his lordshp's at
teDtion to the decision of Lord Eldon in q Maui
rice vs. Coleman" and also to the opinion of Lord
COttenham in a similar case, and submitted there
could be no doubt that where there negative
term in an agreement, the Court would prevent tho
breach Of the agreement by preventing the perfor-
nance of the thing that would be in direct viols-
tion of it, He reminded the Court Of the loss and
injury that must arise to the plaintiff from this
breach of agreement, and trusted that his honor,
by granting injunction-which precedent and
authority justifed-would restore to tho plaintiff
the benefits Of the agreement which the plaintiff
himself was at oil times anxious to fulfil.
Mr.. Clarke followed on the same side. He con-
tended that the contract was valid, and that tn,
objection raised by the protest was an afterthough
to get rid oft. AS proof Of that, it appear red
that the agreement with the defendant Gyo, for
valuable consideration, took place on the day pre-
cedng, and the objection that was raised a
mere .pretence, to get rid Of the engagement with
the plaintiff. This was case in which Mr.. Lumlcy
could not be compensated by action ut law, for
the value Of tho agreement consisted in its exclu
siveness If the Court did not interfere, any DANA
ges that could be hereafter recovered by action
at law, would not repair the injury that would be
done to the plaintiff, if this young lady per-
mtted to appear at the Opera House, in Covent
| Garden. He called his lordship's attention to the
of Rolfo vs.. Rolfe Is Simon, where the agree
ment consisted Of two distinct parts, and the Court
first part though it could not enforce the whole
of it,
Dir. Mains, &C, on the part Of the defendant
opposed the application, and regretted that his
clients had not been allowed opportunity to make
afidavits in reply. On the merits of the case, he
instructed to say they had substantial answer
to plaintiff case, for, though the contract was
| tered into in November that this lady would
sing for Mr. Lumlcy, there had been breach Of
| the contract on the part of Mr.. Lumcy. The
term referred to was part of the agreement when
it was signed by Mr.. Wagner and his daughter, but
! had been introduced into it in Paris. He admitted
| it was not intended that she was to sing at the
two Opera Houses, but they all knew that tho most
eminent singers in the habit of singing at
certs in London and was the defendant to be debar
red from this privilege? 1t would be that this
stipulation had been introduced by Dr. Beacher the
old friend of Mr. Lumley, entirely for his interest,"
and the only letter of the defendants in which it
asserted that the stipulation noticed at all,
the defendants, instead Of adopting it, approving
of it. protested against it. The observations that
had been made in reference to the difficulty arising
from the defendants not carrying into effect the
rangemet with Mr.. Lumley would equally apply to
departure from the arrangements entered into with
Mr.. Gye, and if this lady not allowed to APP
pear on the following night, loss to him, and in
conve,ence to the public, must ensue. How could
| single night at the Opera House, Covent Garden.
| and was she to be prevented from doing so by an
| application made almost at the last moment !!
Vce-Chancellor-Th defendants only came to
England on the 18th.
| Mr.. Mang-That was true the appearance of the
| defendant had been advertised for ten days, and
though the lady and her father not here, that
| was no reason why the plaintiff should not have
filed bill against Mr. eye to prohibit him from per-
uniting her to act Mt his theatre If the opposite
side wished TO have the merits discussed, let the
case stand over until Monday.
Vice Chanceor-Will you give any undertaking
that will induce them to do so if not the case is
of such nature that the court is compelled 80 act
Mr.. Mans-I will give this undertaking. that the
lady will not act the second time until the motion is
| disposed Of
Vice-C Chancellor do not think it is fair to ask
them to accept that undertaking.
Mr.. Mains could go no further, and submitted
that, if his Honor granted this Injunction, it would
be the first instance in which the Court had ever in
terposed in case of the kind. Before proceeding.
he should add to the undertaking he had offered that
they would also undertake to be answerabe in DANA
| ges Having made that observation, he would sub
NIT that, if the Court granted this injunction, it
would be the first instance in which court of equity
had so intertered with public actor or singer for
the violation of contract or otherwise In the case of
| Kemble vs. kean, the Court had refused to do so.
| What was the difference in principle between the
of this lady and the of ordinary servant
Suppose his learned friend engaged the best servant
in London to drive him, and that he chose he next
day to drive some else, Qaughter) would court
of equity interfere to prevent him from driving any
one but Mr.. Bacon! Uaughter) However, both
cases came to the same thing, though the services
in the one case might be more valuable than in the
other This was case in which the Court had ne
yer interered. In Wilson's Reports the rule was laid
down that the injunction should be ancillary to
decree for specific performance and if the Court had
not the means of enforcing the performance of
| tract, then the Court could not interfere. In
support Of this position, he begged to refer to
| Clarke VS.. Price, and Maurice vs.. Coleman The
principle laid down in those authorities app led
to the, case before the Court. The Court
might. by an injunction, prevent this lady from
singing at Convent Garden, but the Court could not
compel her to sing for Mr. Lumley: Even if the
Court could do so, in consequence of their quarrel
it not likely they would go very harmonic
ously together, though regard for his interest
might induce Mr.. Lumey to do the most he could
for the lady. He begged to refer to Hills vs..
Grove, decided by Lord lyndhurst and to Jervisvs
Edwards, decided by Sir Edward Sugden, in Ireland
to show that except court Of equity could enforce
the whole of specific performance it would not in
terfere to enforce part of it..
Vice-Chancellor-Th case of Jcrvis vs. Edwards
was case for specific performance about a water