Lumley v Gye

JurisdictionEngland & Wales
Judgment Date14 January 1854
Date14 January 1854
CourtCourt of the Queen's Bench

English Reports Citation: 118 E.R. 1083


Lumley against Gye

S. C. 2 C. L. R. 936; 23 L. J. Q. B. 112; 18 Jur. 466.

[114] lumley against g-ye. Saturday, January 14th, 1854. A commission, under stat. 1 W. 4, c. 22, s. 4, issued at the instance of the defendant, directed to an English barrister, to examine witnesses in Germany. The witness, a Prussian subject, being at Berlin, the commissioner went thither, but learned that, by the Prussian law, an oath could be administered to a Prussian subject only by a Prussian judge, or some one authorized by a Prussian Court. On the petition 1084 LUMLEY V. GYE 3 EL & BL. 115. of the commissioner, a Prussian Court authorized D., a Prussian to administer the oath. On the commission being opened, D. insisted on assuming the controul of the whole examination, and rejected a question put conformably to the English law, on the ground that it could not be put conformably to the Prussian law. The parties then refused to act further under the commission.-The commissioner returned these facts: and application waa then made, by the defendant, for a new commission, to be directed to a Prussian court or judge, without the clause requiring the commissioner to be sworn. From the affidavit in support of the rule, the above facts appeared; and it appeared, further, from the opinion of a Prussian lawyer, that the Prussian rules of evidence were different from the English, especially that examination and cross-examination by counsel waa not permitted.-This Court ordered that, on payment of the costs of the first commission by the defendant, a commission should be directed to a Prussian judge, as an individual: holding that it ought not to be assumed that the evidence would be taken improperly, and considering that, in the event of such impropriety occurring, an objection might be made at Nisi priiis. Especially as, by this course, an opportunity would be given of raising, by error upon bill of exceptions, the question whether the issuing of such commission was within the power of this Court. [S. C. 2 C. L. R. 936; 23 L. J. Q. B. 112 ; 18 Jur. 466.] Sir A. J. E. Cockburn, Attorney General, in last Term (25th November 1853), obtained a rule calling on the plaintiff'to "shew cause why the defendant should not be at liberty to issue a commission, addressed to the .Royal City Court of Berlin, or any judges or judge thereof, or to be appointed thereby, for the purpose of examining witnesses on the defendant's behalf, resident at Berlin, in the Kingdom of Prussia, and why, in such commission, the usual clause rendering the commissioner's oath necessary should not be dispensed with :" and, further, calling on the plaintiff to "shew cause why a commission should not issue, directed to a commissioner or commissioners for the examination of witnesses on behalf of the said defendant at Hamburgh, on interrogatories : and why the trial of the issues in this cause should not be postponed until the return of the said commissions ;" proceedings to be stayed in the meantime. [115] The rule was obtained on the affidavit of the defendant's attorney. He deposed that, on 10th June 1853, it was ordered by Wightman J., on defendant's application, that a commission should issue to examine Johanna Wagner and other witnesses residing in Germany, and that the trial of the issues in the cause should be postponed until the Sittings after the then next Michaelmas Term. That Johanna Wagner refused to be examined until she should return to Berlin, where her home was, and whence she was to be absent till November 1853, and stated her willingness to be examined there. The plaintiff joined in the commission, which was settled and signed, as approved of, by his attorney. The commission was addressed to Abraham Hayward, Esq., one of her Majesty's counsel, and was annexed to the affidavit, together with Mr. Hayward's return. From these documents, and the affidavit, it appeared that Mr. Hayward arrived in Berlin on 3d November 1853. That it then appeared that a difficulty was likely to arise from the Prussian law not allowing an oath to be administered to a Prussian subject otherwise than in the Prussian form, and by a Prussian judge or functionary. Johanna Wagner was a Prussian subject. The commission appointed Mr. Hayward, and gave him "full power and authority, diligently to examine and cross-examine the witnesses vivd voce, to be produced before you on the part of" the plaintiff and defendant, " to cause the said witnesses to corte before you, at Berlin,'and then and there examine and cross-examine each of them upon their respective corporal oath or affirmation first taken before you according in the form of their several religious, in the form of oath firstly indorsed hereupon. And that you do take such their examinations, and [116] reduce them into writing on paper or parchment; and, when you shall so have taken them, you are to send the same without delay to the office of the masters of this Honourable Court" &c. (as usual). That he should take the oath thirdly endorsed on the commission; and that all clerks employed in taking, &c, the depositions should take the oath secondly endorsed; and that, in the event of an interpreter being employed, such interpreter should take the oath fourthly endorsed. Mr. Hayward, upon being...

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