1851, and which agreement, being translated into English, was as follows: "The undersigned Mr. Benjamin Lumley, possessor of her Majesty's Theatre at London, and of the Italian Opera at Paris, of the one part, and Mademoiselle Johanna Wagner, cantatrice of the Court of his Majesty the King of Prussia, with the consent of her father, Mr. A. Wagner, residing at Berlin, of the other part, have concerted and concluded the following contract. First, Mademoiselle Johanna Wagner binds herself to sing three months at the theatre of Mr. Lumley, her Majesty's, at London, to date * from the 1st of April, 1852, (the time necessary for the *605 sum of 3007. sterling, a sum which will be deducted from *606 her engagement in his retaining 1007. each month. Ninth, In all cases except that where a verified illness would place upon her a hindrance, if Mademoiselle Wagner shall not arrive in London eight days after that from whence dates her engagement, Mr. Lumley will have the right to regard the non-appearance as a rupture of the contract, and will be able to demand an indemnification. Tenth, In the case where Mr. Lumley should cede his enterprise to another, he has the right to transfer this contract to his successor, and in that case Mademoiselle Wagner has the same obligations and the same rights towards the last as towards Mr. Lumley. JOHANNA WAGNER, ALBERT WAGNER." "Berlin, the 9th November, 1851." The bill then stated, that in November, 1851, Joseph Bacher met the plaintiff in Paris, when the plaintiff objected to the agreement as not containing an usual and necessary clause, preventing the defendant Johanna Wagner from exercising her professional abilities in England without the consent of the plaintiff, whereupon Joseph Bacher, as the agent of the defendants Johanna Wagner and Albert Wagner, and being fully authorized by them for the purpose, added an article in writing in the French language to the agreement, and which, being translated into English, was as follows: "Mademoiselle Wagner engages herself not to use her talents at any other theatre, nor in any concert or reunion, public or private, without the written authorization of Mr. Lumley. "Dr. JOSEPH BACHER, "For Mademoiselle Johanna Wagner, and authorized by her." * The bill then stated that the defendants J. and A. Wag* 607 ner subsequently made another engagement with the defendant F. Gye, by which it was agreed that the defendant J. Wagner should, for a larger sum than that stipulated by the agreement with the plaintiff, sing at the Royal Italian Opera, Covent Garden, and abandon the agreement with the plaintiff. The bill then stated that the defendant F. Gye had full knowledge of the previous agreement with the plaintiff, and that the plaintiff had received a protest from the defendants J. and A. Wagner, repudiating the agreement on the allegation that the plaintiff had failed to fulfil the pecuniary portion of the agreement. The bill prayed that the defendants Johanna Wagner and Albert Wagner might be restrained from violating or committing any breach of the last article of the agreement; that the defendant Johanna Wagner might be restrained from singing and performing, or singing at the Royal Italian Opera, Covent Garden, or at any other theatre or place without the sanction or permission in writing of the plaintiff during the existence of the agreement with the plaintiff; and that the defendant Albert Wagner might be restrained from permitting or sanctioning the defendant Johanna Wagner singing and performing, or singing as aforesaid; that the defendant Frederick Gye might be restrained from accepting the professional services of the defendant Johanna Wagner as a singer and performer, or singer at the said Royal Italian Opera, Covent Garden, or at any other theatre or place, and from permitting her to sing and perform or to sing at the Royal Italian Opera, Covent Garden, during the existence of the agreement with the plaintiff, without the permission or sanction of the plaintiff. The answer of the defendants A. and J. Wagner attempted to show that Joseph Bacher was not their authorized agent, at least for the purpose of adding the restrictive clause, and that the plaintiff had failed to make the stipulated * payment by the * 608 time mentioned in the agreement. The plaintiff having obtained an injunction from the Vice-Chancellor Sir JAMES PARKER on the 9th May, 1852, the defendants now moved, by way of appeal before the Lord Chancellor,* to discharge his Honor's order. Mr. Bethell, Mr. Malins, and Mr. Martindale, in support of the appeal motion. We submit that, the agreement in the present case being one of which the Court cannot decree specific performance, the jurisdiction by injunction does not attach. The Vice-Chancellor has rested his decision mainly on the authority of Dietrichsen v. Cabburn, (a) but there the decision was founded on *The case was heard by the Lord Chancellor on a representation that it was intended to confine the argument to the legal question alone, which it was said involved an important point of equity jurisdiction, on which the authorities were conflicting. (a) 2 Phil. 52. the special circumstances of the case tending to establish a partnership, which clearly does not exist here, nor does it warrant such an extension of the principle as has been assumed to be there established; this is shown by the observations of Lord COTTENHAM himself in the subsequent case of Heathcote v. The North Staffordshire Railway Company. (a) In that case, on dissolving an injunction which had been granted by the Vice-Chancellor of England, restraining the company from applying to Parliament for powers to relieve them from the performance of their contract, his Lordship said, "The covenant is a mere legal contract which the Act asked for may prevent the defendant from performing, but that is all if A. contract with B. to deliver goods at a certain time and place, will equity interfere to prevent A. from doing any thing which may or can prevent him from so delivering the goods? : If, indeed, A. had agreed to sell an estate to B. and then * 609 proposed to deal * with the estate so as to prevent him from performing his contract, equity would interfere; because in that case B. would, by the contract, have obtained an interest in the estate itself, which, in the case of the goods, he would not." We contend that the agreement is a purely personal contract, for the infraction of which damages are a complete and ample remedy: the agreement is in fact nothing more than a contract of hiring and service, and whatever the relation between the employer and employed may be, whether master and servant, or principal and agent, or manager and actor, this Court will, in all such cases, abstain from interfering, either directly or indirectly. Kemble v. Kean, (b) Kimberley v. Jennings, (c) Stocker v. Brockelbank. (d) [THE LORD CHANCELLOR. In the case of Stocker v. Brockelbank there was no negative covenant.] The general principle upon which we rely is, that this Court never interferes to restrain the breach of the negative part of a contract in any case where it cannot specifically enforce the performance of the positive part of the contract. Baldwin v. The Society for the Diffusion of Useful Knowledge, (e) Hooper v. Brod rick, (a) Hills v. Croll. (b) The earlier authorities cited by the plaintiff in the Court below, namely, Martin v. Nutkin, (e) Barret v. Blagrave, (d) Morris v. Colman, (e) are all distinguishable. In the case of Martin v. Nutkin, (e) the ringing of the bells was restrained, because not only was there no adequate remedy at law, but the contract was one clearly falling within the ordinary jurisdiction of the Court for specific performance. The same remark applies also to the case of Barret v. Blagrave, (d) *which involved the doctrine of part performance, the *610 tenant having enjoyed the benefits of the lease. In Morris v. Colman, (e) the injunction was granted upon the ground of partnership, as shown by Lord ELDON in the case of Clarke v. Price; (g) and, applying the language of his Lordship in that case to the present, we say that if the agreement is one which the Court will not carry into execution (and this must be admitted) the Court cannot indirectly enforce it. [THE LORD CHANCELLOR observed that in the case of Blakemore v. The Glamorganshire Canal Navigation, (h) Lord ELDON had got over his scruples; for he there granted an injunction, the effect of which was indirectly to compel the company to restore certain works to the state in which they originally stood. His Lordship added that he had always felt some difficulty in acquiescing in the propriety of that decision.] The utmost extent to which the Court ought to go in granting such prohibitory injunctions, when a proper case is shown for its interference, is in the form adopted in the case of Robinson v. Lord Byron, (i) where the defendant was restrained from preventing the flow of water in the usual quantities; but it is to be observed that, wherever there is a clear legal remedy, as exists in the present instance, this Court will decline to interfere in cases arising out of the doctrine of specific performance. Collins v. Plumb. (k) [THE LORD CHANCELLOR. This Court interferes by injunction (a) 11 Sim. 47. (g) 2 Wils. 157. |