Lapas attēli
PDF
ePub

their testimony can only be taken by means of letters rogatory. "This method of obtaining testimony from witnesses in a foreign country has always been familiar in the Courts of Admiralty; but it is also deemed to be within the inherent` powers of all courts of justice. For, by the law of Nations, courts of Justice, of different countries, are bound mutually to aid and assist each other, for the furtherance of justice; and hence, when the testimony of a foreign witness is necessary, the Court before which the action is pending, may send to the Court within whose jurisdiction the witness resides, a writ, either patent or close, usually called a letter rogatory, or a commission sub mutuae vicissitudinis obtentu, ac in juris subsidium, from those words contained in it. By this instrument the court abroad is informed of the pendency of the cause, and the names of the foreign witnesses, and is requested to cause the depositions to be taken, in due course of law, for the furtherance of justice; with an offer, on the part of the tribunal making the request, to do the like for the other in a similar case. The writ or commission is usually accompanied by interrogatories, filed by the parties, on each side, to which the answers of the witnesses are desired. The commission is executed by the judge who receives it, either by calling the witness before himself, or by the intervention of a commissioner for that purpose; and the original answers, duly signed and sworn to by the deponent, and properly authenticated," or duly authenticated copies of the same, "are returned with the commission to the Court from which it issued. The Court of Chancery has always freely exercised this power, by a commission, either directed to foreign magistrates, by their official designation, or more usually, to individuals by name; which latter course, the peculiar nature of its jurisdiction and proceedings enables it to induce the parties to adopt by consent, where any doubt exists as to its inherent authority." A special application for an

§ 290. 1 Greenleaf's Ev., § 320. See for a good form, Nelson v. U. S., 1 Pet. C. C. 236, note. See also Cunningham v. Otis, 1 Gall. 166; Hall's Adm. Pr., part 2, tit. 19, vol. 1, cum

add., and tit. 27, cum add., pp. 37, 38,

1

55, 60; Clerke's Praxis, tit. 27;1 Roll. Abr. 530, pl. 15; Oughton's Ordo Judiciorum, vol. 1, pp. 150, 152, tit. 95, 96; Wharton's Int. Law Dig., vol. III, § 413.

order for letters rogatory may be made to the court, and will be granted in the first instance without issuing a commission, upon satisfactory proof that the authorities abroad will not allow the testimony to be taken in any other manner. "When any commission or letter rogatory, issued to take the testimony of any witness in a foreign country, in any suit in which the United States are parties or have any interest, is executed by the court or the commissioner to whom it is directed, it shall be returned by such court or commissioner to the minister or consul of the United States nearest the place where it is executed. On receiving the same, the said minister or consul shall indorse thereon a certificate, stating when and where the same was received, and that the said deposition is in the same condition as when he received it; and he shall thereupon transmit the said letter or commission so executed and certified by mail, to the clerk of the court from which the same issued, in the manner in which his official dispatches are transmitted to the government. And the testimony of witnesses so taken and returned shall be read as evidence on the trial of the suit in which it was taken, without objection as to the method of returning the same." The statutes further provide for the taking of testimony under a commission or in pursuance of letters rogatory issued from a court in a foreign country, with which the United States are at peace, to take the testimony of a witness residing within the United States, in any suit for the recovery of money or property depending in such foreign court in which the government of such foreign country is a party or has an interest, as follows:

"The testimony of any witness residing within the United States, to be used in any suit for the recovery of money or property depending in any court in any foreign country with which the United States are at peace, and in which the government of such foreign country shall be a party or shall have an interest, may be obtained, to be used in such suit. If a commission or letters rogatory to take such testimony, together with specific written interrogatories, accompanying the same

2 Hoffman's Ch. Pr. 482; Daniell's 6 Wend. (N. Y.) 475; Gross v. Palmer, Ch. Pr. (3d Am. ed. by Judge Perkins), 105 Fed. R. 833. vol. II, p. 953; Gason v. Wordsworth, 2 Ves. Sen. 336; Lincoln v. Battelle,

U. S. R. S., § 875.

and addressed to such witness, shall have been issued from the court in which such suit is pending, on producing the same before the district judge of any district where the witness resides or shall be found, and on due proof being made to such judge that the testimony of any witness is material to the party desiring the same, such judge shall issue a summons to such witness requiring him to appear before the officer or commissioner named in such commission or letters rogatory, to testify in such suit. And no witness shall be compelled to appear or to testify under this section except for the purpose of answering such interrogatories so issued and accompanying such commission or letters: Provided, That when counsel for all the parties attend the examination, they may consent that questions in addition to those accompanying the commission or letters rogatory may be put to the witness, unless the commission or letter rogatory exclude such additional interrogatories. The summons shall specify the time and place at which the witness is required to attend, which place shall be within one hundred miles of the place where the witness resides or shall be served with such summons." It has been held that criminal proceedings, and proceedings relating to the investigation as to the smuggling of some cases of cotton," do not come within this statute.

4

"No witness shall be required, on such examination or any other under letters rogatory, to make any disclosure or discovery which shall tend to criminate him either under the laws of the State or Territory within which such examination is had, or any other, or any foreign State."7

"If any person shall refuse or neglect to appear at the time and place mentioned in the summons issued in accordance with section forty hundred and seventy-one, or, if upon his appearance he shall refuse to testify, he shall be liable to the same penalties as would be incurred for a like offense on the trial of a suit in the District Court of the United States."8

"Every witness who shall so appear and testify shall be allowed, and shall receive from the party at whose instance he shall have been summoned, the same fees and mileage as are

4 U. S. R. S., § 4071.

6 In re Letters Rogatory, 36 Fed. R.

5 Matter of the Spanish Consul, 1 306. Ben. 225.

7 U. S. R. S., § 4072.

8 U. S. R. S., § 4073.

allowed to witnesses in suits depending in the District Courts of the United States."9

"When letters rógatory are addressed from any court of a foreign country to any Circuit Court of the United States, a commissioner of such Circuit Court designated by said court to make the examination of the witnesses mentioned in said letters, shall have power to compel the witnesses to appear and depose in the same manner as witnesses may be compelled to appear and testify in courts." 10

9 U. S. R. S., § 4074.

19 St. at L 241 (U. S. R. S. 1 Supp.

10 U. S. R. S., § 875, as amended by 266).

CHAPTER XX.

DISMISSING BILLS OTHERWISE THAN AT A HEARING.

2

§ 291. Dismissal of bills by the plaintiff.-The plaintiff may dismiss his bill without costs at any time before the defendant's appearance. He may obtain the order for the dismissal as of course upon motion or petition, usually by the latter; but if the dismissal is a violation of an agreement between him and the defendant, the order granting it may be subsequently vacated. After appearance and before a decree or decretal order, a plaintiff can usually obtain a dismissal upon payment of the costs of such of the defendants as have appeared; but not, if they or any of them would be injured thereby. Leave to dismiss may be refused where the defendant claims affirmative relief by cross-bill, or by answer in a case where he is entitled to affirmative relief on an answer. For example, where the bill was filed to enforce a false claim to property or an instrument, which the evidence showed had been obtained by fraud, in which case the defendant without filing a cross-bill would be entitled if successful to a decree declaring the plaintiff's claim unfounded, and enjoining him from again setting it up; or where the bill was filed to set aside a patent on the ground of interference, when the defendant may obtain affirmative relief by answer. Leave has been

§ 291. 1 Thompson v. Thompson, 7 the text was quoted with approval Beav. 350. by Hanford, J., in Hershberger v. 2 Daniell's Ch. Pr. (5th Am. ed.) 790, Blewett, 55 Fed. R. 170. 791.

3 Betts v. Barton, 3 Jur. (N. S.) 154. 4 Chicago & A. R. Co. v. Union R. M. Co., 109 U. S. 702; Conn. & P. R. Co. v. Hendee, 27 Fed. R. 678.

5 Cooper v. Lewis, 2 Phil. 178; Ainslie v. Sims, 17 Beav. 174; Booth v. Leycester, 1 Keen, 247; Bank of S. C. v. Rose, 1 Rich. Eq. (S. C.) 292; Stevens v. The Railroads, 4 Fed. R. 97. See W. U. Tel. Co. v. Am. Bell Tel. Co., 50 Fed. R. 662. This sentence of

6 Electrical Acc. Co. v. Brush El. Co., 44 Fed. R. 602; C. & A. R. Co. v. Rolling M. Co., 109 U. S. 702; Stevens v. The Railroads, 4 Fed. R. 97; Hat Sweat Mfg. Co. v. Waring, 46 Fed. R. 87; City of Detroit v. Detroit City Ry. Co., 55 Fed. R. 569.

7 Stevens v. The Railroads, 4 Fed. R. 97; Hat S. Mfg. Co. v. Waring, 48 Fed. R. 87; supra, § 171.

8 Electrical Acc. Co. v. Brush El Co., 44 Fed. R. 602; supra, § 171.

« iepriekšējāTurpināt »