219 Mass. 58 | Mass. | 1914
The petitioner, as administrator of the estates of two different persons, brings these applications in the Superior Court, praying it to issue letters rogatory for taking the testimony of witnesses in the Kingdom of Italy, to be used in the hearings on proceedings brought and pending before the Industrial Accident Board for the recovery of the payments provided by the workmen’s compensation act, St. 1911, c. 751, for the death of these two decedents.
Letters rogatory as a means of procuring the evidence of witnesses in foreign States are not much in use in this Commonwealth. The statutes make ample provision to this end by means of depositions. The power to issue a commission rogatory in order to prevent a failure of justice is inherent in a court. But it always has been recognized that such power can be put foijth only in aid of a cause actually pending in the court which issues the letters. That this must be so is apparent when the nature of the proceeding is considered. It is in form a request to a court of a foreign jurisdiction asking as a matter of comity that that court will take the testimony of a witness or witnesses within its jurisdiction and transmit the same to the court making the request, for its aid in the doing of justice as to a cause before it. The matter is not dependent upon statute, but rests upon the international good will toward each other by which courts of civilized countries are actuated. Anonymous, 59 N. Y. 313, 314. State v. Bourne, 21 Ore. 218. Nelson v. United States, Pet. C. C. 235. 1 Greenl. Ev. § 320.
It is not within the power of a court, even of general jurisdiction, to issue letters rogatory to obtain testimony to be used before a tribunal over whose procedure and trials it is given no authority until the case itself may be brought before it for review. Therefore, it is not within the authority of the Superior Court to procure evidence for use before a tribunal over whose proceedings it has no more intimate supervisory power than it has over the Industrial Accident Board.
It is urged that power is conferred by that part of St. 1912, c. 571, § 8, which provides that, “The board or any member thereof shall have the power to subpoena witnesses, administer oaths, and to examine such parts of the books and records of the parties to a proceeding as relate to questions in dispute. . . . The Superior Court shall have power to enforce by proper proceedings the provisions of this section relating to the attendance and testimony of witnesses and the examination of books and records.” These words confer no power to issue letters rogatory or to issue commissions to take depositions.. It plainly goes no further than to authorize the court to compel the attendance of witnesses within its jurisdiction and to deal with those who refuse to appear and testify. It would have been a simple matter for the Legislature to have conferred upon the Superior Court the additional power here invoked. It seemed quite probable that it was overlooked. At all events it is unprovided for. Although the workmen’s compensation act is to be liberally construed, the court cannot go outside its language for the purpose of assuming a power not granted either expressly or impliedly.
The proper practice was followed of saving exceptions to the granting of the petition. After exceptions were saved and allowed and were pending, there could be no appeal.
Exceptions sustained.
Appeal dismissed.
