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

tract that johanna and Albert Wagner ever had
In their possession signed by Mr.. Lumley. He
required that the term should DO added to
II, and tho only contract they had in their
possession was the contract containing that
term. fnd in tho letter Of the 2lst Of Feb
ruary written to Dr. Bscher, that reference 10 made
to that particular term part Of the agreement.
They don't protest against it, but they make
comment upon it. If there DO contract between
the parties. take it there is little doubt as to the
law Of the Court; # party agrees to do thing
Tor valuable consideration, and that is part Of the
agreement to forbear from doing another thing, the
law OF this Court will restrain . party from acting
in derogatlon OF the negative part of the agreement
though the Court has no power to compel the exc
cution OF the positive part, and could not COM
understand Lord Cottenham to have laid down tho
rule Of the Court state it, and that in doing so
he only followed the rule of Lord Eldon, in Maurice
VS. Coleman and, as understand it, tho rule is to
that the doing SO is not incidental to the specific
performance at all. The question ia, has Mr.
Lumley performed his part of the agreement; and
in considering that question ! am obliged to deal
lady on the 18th Of March, by bills Of ex-
change, f3O0 It appears that Mr.. Lumley
had in the hands Of this young lady's own
agent Dr. Bacher, G40O and upwards. FIND, tho
9Th Of March, this lady father, writing to Mr.. Lum
ley says, il you send the bill Of exchange at this
time send 1t to Berlin. and if not, send it from the
I'd of April to Hamburg clearly dispensing with
the 10Th OF March as the period for payment, and
leaving MT Lum!ey to suppose that payment on the
I'd Of April, at Hamburg, would be sufficient pay
ment and Mr.. Lumey stated to him in reply, that
the $500 was in the hands Of DR.. Bacher, and that
he had no doubt before his letter reached Mr. Wag-
ner it would be paid over to him. DR.. Bacher writes
to the young lady herself with respect to where he
would meet her to pay her the money, and make
with her the journey to London. If Mr.. Iumley had
declined to perform his part of the agreexent, no
doubt the Court would refuse to be set in motion by
him, but whom Mr.. Lumley found difficulty on that
score, no goes to Hamburg to offer the money to her
Therefore he has shown that he is entitled to the in
reference of the Court shall therefore grant the
injunction against tho young lady and Mr.. Gye,
with liberty to the defendants to give notice Of mo-
ton to dissolve it.
The Court then rose it being understood that this
Saturday morning the defendants will apply to
dissolve the injunction
On Saturday, as soon as his Honor took his seat
upon the bench,
Mr.. Bethel said-Sir. in the interval that has
elapsed since the ca pdrte injunction was granted
against the defendants, Johanna Wagner and Free
derrick eye, we have been quite unable to complete
our evidence so rs TO bring it into satisfactory
state by the time at which am now addressing
your Honor. 9have, therefore, to ask your Honor
to allow this motion to stand for few days
We are very DESTROYS OF coming before the Court rs
soon MS possible; but by one OF those singular cir
cumstances which sometimes occur, we have Just
received letter which may give clue to further
discovery, which will no doubt explain the mis-
representations and misstatements by means of
which your Honor was induced to grant the en-
paytc injunction have therefore to ask TINT your
Honor will allow the motion to stand over generally
Mr.. Bacon sad-I do not object to the course
proposed. but the injunction which granted on
Friday can hardly be called CT parte Injunction
It was granted after full discussion each side.
Leave was then given to the defendants to move to
dissolve the injunction. On Friday evening notice
Of motion was accordingly given to us for Saturday
or so soon after as counsel could DO heard. All
Saturday passed, ms well as Monday. Leave was
asked late yesterday afternoon to bring tho motion
on the first thing this morning; and although we
were then told that afdavits had been filed by the
defendants. we find upon inquiry at the Office that
no affidovits whatever have been filed. Appearing
here as do on behalf of Mr. Lumey. all desire is,
that when the evidence the other side is com
pleted, to which Mr. Bethel alludes, we may ha We
an opportunity of seeing it, at least, before the mo-
ton i brought on
His Honor--Thon it now stands over. Mr.. Be-
thcll you are to unicate to the other side the
day which ii will suit the defendants to make the
motion.
Mr.. Bethell-Yes, sir; and if it should be me-
cessary to bring it on next Saturday morning. we
will make communication to your honor.