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Lumley v Gye (2); 14 Jan 1854

References: [1854] EngR 95, (1854) 3 El & Bl 114, (1854) 118 ER 1083
Links: Commonlii
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 commissiotier 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 of the cornmissioner, a Prussian Court authorized D., a Prussian to administer the oath. On the commission beirig opened, D. insisted on assuming the controul of tbe 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 was then made, by tha defendant, for a new commission, to be directed to a Prussiam 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, especilly that examination and cross-examination by counsel was not permitted .
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