Letters Rogatory

An instrument sent in the name and by the authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a cause depending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed.

An Instrument sent in the name and by the authority of a Judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a cause depending before the former, a witness who is within the Jurisdiction of the Judge or court to whom such letters are addressed. They are sometimes denominated commissions sub mutute vicissitudinis obtentu, ac in juris subsidium, from a clause which they generally contain. Where the governallow commissioners to administer oaths to such witnesses, or to allow the commission to be executed unless it is done by some magistrate or judicial officer there, according to the laws of that country, letters rogatory must issue., These letters are directed to any Judge or tribunal having jurisdiction of civil causes in the foreign country, recite the pendency of the suit, and state that there are material witnesses residing there, whose names are given, without whose testimony justice cannot be done between the parties, and then request the said judge or tribunal to cause the witnesses to come before them and answer to the interrogatories annexed to the letters rogatory, to cause their depositions to be committed to writing and returned with the letters rogatory; 1 Greenl. Ev. I 820. There is always an offer, on the part of the court whence they issued, to render a mutual service to the court to which they may be directed, whenever required. The practice of such letters is derived from the civil law, by which these letters are sometimes called letters requlsltory. A special application must be made to court to obtain an order for letters rogatory, and it 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; 1 Hoffman, Ch. Pr. 482; 2 Uan. Ch. Pr., 3d Am. ed. 953. Though formerly used in England in the courts of common law; 1 Rolle, Abr. 530, pi. 13; they have been superseded by commissions of dedimus protestatem, which are considered to be but a feeble substitute. Dunl. Adm. Pr. 223, n.; Hall, Adm. Pr. 37. The courts of admiralty use these letters; and they are recognized by the law of nations. See Foelix, Droit Intern, liv. 2, t. 4, p. 300; Denisart; Dunlap, Adm. Pr. 221; Bened. Adm. § 533; 1 Hoflfm. Ch. 482. In Nelson v. U. S., 1 Pet. C. C. 236, Fed. Cas. No. 10,116, will be found a copy of letters rogatory, issued to the courts of Havana, according to the form and practice of the civil law, on an occasion when the authorities there had prevented the execution of a commission, regarding any attempts to take testimony under it as an interference with the rights of the judicial tribunals of that place. See also. In re Robert’s Will, 8 Paige (N. Y.) 446; 2 Ves. Sr, 336; Lincoln v. Battelle, 6 Wend. (N. Y.) 475. The United States revised statutes provide for the taking of testimony of witnesses 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. Where a commission of letters rogatory to take such testimony upon interrogatories has been Issued from the court in which resides or Is found, and on proof to the Judge that the testimony of a witness is material, he shall Issue summons to the witness requiring him to appear before the officer or commissioner named in the commission or letters rogatory. The summons must specify the time and place, which shall be within one hundred miles of the place where the witness resides or is served. In case of neglect of a witness to attend and testify he is liable to the same penalties incurred for the like offence in the trial of a suit in the district court of the United States, and he is entitled to the same fees and mileage as are allowed to witnesses in that court. No witness shall be required to criminate himself on such examination; U. S. R. S. §§ 4072-4. When letters rogatory are addressed from a foreign court to any circuit court of the United States the commissioner appointed by the latter court shall have power to compel witnesses to appear and testify; id. S 875, as amended by U. S. Stat. 1 Supp. 266. When a commission or letter rogatory is issued to take testimony of a witness in a foreign country, in a suit In which the United States are parties or have any interest, after being executed by the commi.ssloner it is to be returned to the minister or consul of the United States nearest the place where it is executed, and by him transmitted to the clerk of the court from which it was issued; and when so taken and returned the testimony shall be read as evidence, without objection to the method of returning the same; U. S. R. S. S 875. Among the class of cases held not to be within the statutes are criminal proceedings; In re Petition of Spanish Consul, 1 Ben. 225, Fed. Cas. No. 33,202; and proceedings relating to an investigation as to the smuggling of some cases of cotton; In re Letters Rogatory from First Dist. Judge, 36 Fed. 306. See, generally, 1 Fost, Fed. Prac., 2d ed. § 290, In the notes to which will be found a great deal of interesting matter relating to the diplomatic correspondence on this subject. See, also, Cunningham v. Otis, 1 Gall. 166, Fed. Cas, No. 3,485; 1 Hall, Adm, Pr. 37,;.18, 55-60; Clerke, Praxis, tit. 27; 3 Whart. Int. L. § 413; 1 Oughton, Ordo Judiciorum 150-152; 1 Rolle, Abr. 530, pi. 15.

A formal communication in writing, sent by a court in which an action is pending to a court or judse of a foreign country, requesting that the testimony of a witness resident within the jurisdiction of the latter court may be there formally taken under its direction and transmitted to the first court for use in the pending action. This process was also in use, at an early period, between the several states of the Union. The request rests entirely upon the comity of courts towards each other. See Union Square Bank v. Reichmann. 9 App. Div 596, 41 N. Y. Supp. 6O2.

Defined under Letter in Black's Law Dictionary.