The Express.
London, England, 1854-01-16 00:00:00

EM) Intelligence.

COURT OF QUERN'S BENCH.-SATURDAY.
?rums Dr BANOCI.-11ZIOSI Iti&D CUIPULL, A D JURICIII COLO.
11.011, ILA AID 01101IPTOW.
LVMLEY V. 012.—T1111 Vial OP YDLLE. WAONIR.

This was an action brought by the former proprietor of

her Majesty's Theatre against the proprietor of the Covent.
Garden Opera-house, to recover damages from the defen-
dant for having induced Male. Joanna Wagner to break
an engagement which she bad entered into with the plain-
tiff. A rule had been obtained last term calling on the
plaintiff to show cause why the defendant should not be at
liberty to issue a oonstahnion addressed to the Royal Coast
of Berlin, and why any judge or judges of that court should
not be appointed to examine witneeses on the defendant's
behalf at Berlin, and why the usual clause rendering it
necessary for aa oath to be taken by the commissioners
should not be dispensed with, and why another commission
should not issue to examine witnesses on behalf of the
defendant on interrogatories at Hamburg.
Sir F. Thesiger now showed cause against the rule on
the part of the plaintiff. He said the question raised by it
was one of great importance and ditlicalty. Before con-
sidering the nature of the application, he would call their
lordships' attention to the proceedings which had taken
place and to the delay that had already occurred in this case.
The action was commenced in January last, and on the 31st of
that month there was a rule to plead and demur. There
was then a p:ea and demurrer, and on the 3rd of February,
the plaintiff lodged ►is points for argument. On the 4th,
Mr. Justice Coleridge made an order to postpone the trial
until the sittings after Raster term, and the defendant was
to be at liberty to issue a commission for the examination
of witnesses abroad within three weeks, to be returnable on
the 10. h day of the following Easter term. Oa the 9th of
February, Mr. Justice Wighttnan made an order to poet-
pone the trial till after Trinity, sad left either party at
liberty to apply for a commission at any time. On the 3rd
of June this Court gave judgment for the plaintiff on de-

sinner. On the 10th of June se order was made for issuing
the commission, but, nothing was done under it by the defend-
ant for two montheOn the 22nd August the plaintin,attortiey
applied to the defendant's attorney to know w hen the com-
mission was to be executed, and on the 2lth he was furnished
with a draft of the special order, and on the 26th of Octo-
ber, with a draft of the commission itself, of which he ap-
, proved, and returned it on the 29th. The plaintiff's
attorney stated in his affidavit, that he had used every
effort to bring the cue to trial at the earliest period, bat
that the defendant bad always appeared desirous to delay
it. The authority of this court to issue the commission was
derived from tho let Wil. IV, e. 22, which extended the
powers of an act, which applied only to India. The 4th sec.
gave power to any of the superior courts to order a commis-
sion to issue for the examination of witnesses in any place out
of their jurisdiction, by interrogatones or otherwise, and
also to give all such directions, touching the time, place,
and manner of inch examination, and all other matters and

. ~.

eircumatances connected with such examination u might ap-
pear reasonable and just. When the commissioner arrived at
Berlin it was found that according to the Prussian law no
oath could he administered to any witness in the Prussian
dominions except in the presence of some judge of a
Prussian court. The commissioner, Mr. Hayward, applied I I
by petition to the Royal Court to appoint a judge, which I
they did, and a judge accordingly attended. The only
I witnesses to be examined were Mlle. Wagner and her
father, and the oath was administered to them, but the
Prussian judge, not content with that, insisted en being
present at, and taking upon himself the management iif, the
inquiry. He said that neither another witness, nor the
plaintiff, nor the defendant, were allowed to be present
daring the examination of a witness, and M. Wagner and ,
Mr. eye therefore left the room. A. paper writing was
produced and shown to Mdlle. Wagner, who was asked
if the signature was in her handwriting. The Prussian judge
I
said there must be same preliminary specification of the
contents of the papers, and prevented the witness from
answering. Mr. I uddleston, who appeared fer the plain-
tiff, then interposed, and said that the examination must
be conducted according to the Eoglisb rules of evidence.
Mr. Creasy, for the defendant, concurred, and Mr. Hay ward
pointed out to the judge that it would be impossible for
him to continue the inquiry if he persevered in his inter- I
position. He did, however, persevere, and the examination
was brought to a conclusion. M. Geppert, an eminent
Prussian advocate, was then consulted as to what course
ought to be pursued, and he gave it as his opinion that the
witageses might be examined according to the English law.
without the presence of the judge, if they voluntarily sub- 1
milted to such an *emanation. Mdlle. Wagner on
being applied to, at first appeared disposed to
consent to this course, but ultimately wrote 'to
Mr. Hayward, declining to do go ; under these
circumstances, if the commission were issued at all,
it ought only to be issued on payment of the costs of the
former commission by the defendant, who having been in
communication with Mdlle. Wagner, might have
known whether she would consent to an examination or
not, and ought to have made himself acquainted with the
Prussian law before he applied for the commission.
Lord Campbell said it could hardly be expected that the
defendant could have known the exact provisions of the .
Prussian law, or that he could have foreseen the refusal of
the witness to submit to examination.
Sir F. Thesiger referred to a cue in 10 Common Pleas.
p. 898, in which the Court of Common Pleas had under
similar circumstances issued a commission only on payment
of cute. But the most important question in the case was
whether their lordships now had power to issue a commis•
siou to a foreign court. In " Clay T. Stevenson" (7 Ad.
and El., p. 188), this court had issued a commission to
the Court of Commerce at Hamburg, but it was expressly
said that it was directed to the individuals and not to the
judges as members of the court. Their lordships could
have no power to order a witness to be examined in a man-
ner contrary to the English law. If they were examined
according to the Prussian law all creations must be put
through the judge, who might admit the most irrelevant
evidence, and neither party could cruss-examine the wit-
nesses. It was the undoubted right of the parties accord-
ing to the English law to cross-examine witnesses.
Mr. Justice Coleridge said this argument would have
fearful consequences, because the same rules of law pre-
vailed throughout almost the wliple of the continent.
Lord Campbell said he thought this court had no
authority to send a commission to another court in a foreign
country, but be did not know that they had not the power
of issuing • commission to the individual members of that
court. The question was whether they had authority to
issue a commission to be carried into effect in a country
where the procedure on the examination of witnesses was
contrary to our practice and our law.
Sir F. Thesiger said that the foreign tribunal might
admit hearsay evidence, and many other kinds of evidence
inadmissible under the English law.
Lord Campbell said that the English court would reject
anon evidence as it considered inadmissible when the com-
mission was returned to it.
Sir F. Thesiger said, if several commissions were issued
to be executed in various continental states, the evidence
given according to the law of each of those states might be
admitted in an English cause. He submitted that there
were such insuperable difficulties in the way of issuing a
commission in the meaner prayed, that their lordships
would not now for the filet time issue such a commission,
but would discharge the rule.
Mr. noggins followed on the same side.
Mr. Huddleston, on the same side, submitted that even
if the commission issued it would be useless, because M.
and Mdlle. Wagner had positively refused to be examined
except according to the Prussian law.
The Attorney-Geueral, in support of the rule, contended
that unless the commission were issued the intention of the
act of parliament to admit into an English cause the exami-
nation of witnr us out of the jurisdiction of this court
would be entirely frustrated. According to the Prussian
law it was necessary for the judge to be present in order to
have the examination of a witness taken. The evidence of
the parties now sought to be examined went to the
menu of the cense. The whole case turned upon.
the question of whether the defendant was aware at
the time he had engaged Mdlle. Wagner that she had been t.
previously engaged by the plaintiff. The arguments which
his learned friend bed brought against issuing the commis-
sion would apply equally to all commissions which had ever
been lined. In Germany as well as in all civilised coun-
tries sufficient provision was made for the punishment of
the crime of perjury, so their lordships would not be deterred
from granting the application on the feround that perjury
might he committed with impunity. These were the pre-
cedents to which his learned friend had referred to justify
such a commission, and also the authority of Mr. Baron
Parke (Mess and Wells, p. 678), who had issued a commis-
sion to the Royal District Court of Bavaria. He contended
that neither aeon reason nor authority ought their lord-
ships refuse to make the rule absolute.
Mr. Creasy and Mr. Willes who also appeared for the de-
fendant were not called upon.
Lord Campbell was of opinion that upon payment of the
outs incurred in executing the former comin,ssion this
ONlMllilliOn ought to issue. If he bad no difficulty in
that thecourt had power to issue the commission he
rhYlo:ls be desirous to du so because if it did not issue most
important evidence must be excluded. There was no
, doubt that Mdlle. Wegner and her father were both very
material witnesses. Had they then the power? As at
present advised he thought they hid the power nate send
a commission to the Royal Court of Berlin, but to the
individuals who constituted that court. The only objec-
tion that could be made to this power was that the exeunt,-
nation of witnesses, according to the Prussian law, was
different to their examination according to the English law.
This was a serious objection, but giving all due weight to it
he thought it ought not to prevail, because they ought not
to suppose th ,t the evidence when given would he given a
a manner contrary to the law of England. If it were so, it
would be rejected at nisi print or a hill of exceptions might
be tendered against its reception, and their decision might
be reviewed by the Roue of Lords.
Mr. Justice-Coleridge was of the same opinion, as, by
taking this course, the opinion of a superior tribunal might
be taken upon the question.
Mr. Justice Erle concurred. They must tee whether the
issuing of the commission would advance the interests of
truth, and he thought it would do so, as it would admit
most important evidence, and they must presume that the
examination would be conducted tu such • manner as to
elicit the truth.
Mr. Justice Crompton concurred.
Lord Campbell said it would be desirable for the'. *agar .p.„,
of this court to see the commission before it was sent wata',
as it was ti, be sddtvsed to a vary high Waimea. Ile -1,-0,
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