plaintiff only asks, that he may be at liberty to pay the money, or deliver the property to the party, to whom it of right belongs, and may thereafter be protected against the claims of both. In the latter case, the only decree, to which the plaintiff is entitled, is a decree, that the Bill is properly filed; or, in other words, that he shall be at liberty to pay the money, or bring the property into Court, and have his costs; and that the defendants interplead, and settle the conflicting claims between themselves. So, a Bill, in the nature of an interpleading Bill, will lie by a bank, which has offered a reward for the recovery of money stolen, and a proportionate reward for a part recovered, where there are several claimants of the reward, or a proportion thereof, one or more of whom have sued the bank. And in such a Bill all the claimants may be made parties, in order to have their respective claims adjusted. § 298. Secondly, in regard to Bills of Certiorari. The object of this Bill (which is rarely, if ever, used in America) is to remove a suit in Equity, pending in some inferior Court, into the Court of Chancery, or into some other proper superior Court of Equity (if any such there be), on account of some alleged incompetency of the inferior Court, or some injustice in its proceedings. This species of Bill, having this sole object, merely prays the writ of certiorari. The Bill first states the proceedings in the inferior Court; it then states the cause of the incompetency of the inferior Court, by suggesting, that the cause is out of its jurisdiction ; or that the witnesses live out of the jurisdiction ; or that the defendants live out of the juris 1 2 Story on Eq. Jurisp. (2d edit.) § 824, and cases there cited; Bedell v. Hoffman, 2 Paige, R. 199. diction, and are not able, by age or infirmity, or the distance of the place, to follow the suit there; or that, for some other cause, equal justice is not likely to be done them; and it then prays a writ of certiorari, to certify and remove the record and the cause to the superior Court. It does not pray, that the defendant may answer, or even appear to the Bill; and, consequently, it prays no writ of subpoena, although a subpœna must be sued out and served. When the cause is removed from the inferior Court, the Bill exhibited in that Court is considered as an original Bill in the Court of Chancery, or other superior Court, and is proceeded upon as such. The proceedings, however, on it are peculiar; but they belong rather to the practice, than to the pleadings, of a Court of Equity.1 1 Wyatt, Pr. Reg. 82-84; 1 Harris. Ch. Pr. by Newl. 49. The form of the writ of certiorari will be found in Hinde's Ch. Pr. 581. The proceedings to justify the superior Court in retaining the Bill, and the suggestions on which the removal of the proceedings from the inferior Court are required, are to be proved by satisfactory depositions in the superior Court. Wyatt, Pr. Reg. 83, 84; 1 Harris. Ch. Pr. by Newl. 49-51. 2 Mitf. Eq. Pl. by Jeremy, 50; Wyatt, Pr. Reg. 82; Cooper, Eq. Pl. 50, 51; Hinde, Ch. Pr. 581; Id. 28; 1 Mont. Eq. Pl. 244. In the form of the Bill given in Van Heyth. Eq. Drafts. 312, there is a prayer for a subpoena, and also for an answer. But the proposition in the text is laid down in all the authorities cited to support it. See also 1 Mont. Eq. Pl. 244, and note (2). See Barton's Suit in Equity, 51, 52, where the common form of the prayer is given. 3 Mitf. Eq. Pl. by Jeremy, 51. 4 Mitf. Eq. Pl. by Jeremy, 50, 51; Cooper, Eq. Pl. 50, 51; Hinde, Ch. Pr. 28-32. CHAPTER VII. BILLS NOT PRAYING RELIEF - BILLS TO PERPETUATE TESTIMONY, AND TO TAKE TESTIMONY DE BENE ESSE, AND BILLS OF DISCOVERY. $ 299. We come, in the next place, to the consideration of Original Bills, not praying for relief. These (as we have seen") are of two kinds. (1.) Bills to perpetuate testimony, or to examine witnesses de bene esse. (2.) Bills of Discovery, technically so called. Upon the peculiar frame and structure of each of these classes of Bills, a few words are proper to be said. § 300. And first, in regard to Bills to perpetuate testimony. The sole object of such a Bill is, to assist other Courts, and to preserve evidence to prevent future litigation. In order to maintain such a Bill, it is necessary to state on its face all the material facts, which are necessary to maintain the jurisdiction. It must, in the first place, state the subject matter, touching which the plaintiff is desirous of giving evidence. Thus, for example, if the object of the Bill is to perpetuate the testimony of the witnesses to a deed respecting real estate, the deed should be properly described, and the names of the witnesses, who are to prove the same, be set forth. And if the object of the Bill is to perpetuate the evidence of witnesses to 1 Ante, s 19. 2 Cooper, Eq. Pl. 52 ; Mitf. Eq. Pl. by Jeremy, 148, 149; Barton's Suit in Eq. 53, 54. 3 Mitf. Eq. Pl. by Jeremy, 51. facts in pais, it is not sufficient to state generally, that they can give evidence as to certain facts; but the Bill must state specially, what these facts are. 301. In the next place, the Bill should also show, that the plaintiff has some interest in the subject-matter, which may be endangered, if the testimony in support of it is lost; for, unless he has some interest, he is not entitled to maintain the Bill.? A mere expectancy, however strong, is not sufficient; but the party must have a positive interest. For it has been well said ; “ Put the case as high as possible ; that the party, seeking to perpetuate the testimony, is the next of kin of a lunatic; that the lunatic is intestate ; that he is in the most helpless state, a moral and physical impossibility (though the law would not so regard it), that he should ever recover; even if he were in articulo mortis, and the Bill was filed at that instant; still, the plaintiff could not qualify himself to maintain it, as having any interest in the subject of the suit.” But if there be any vested interest, however slight or trifling in value, whether it be absolute, or contingent, whether it be present, or remote and future in enjoyment, is wholly immaterial. Nay ; it has been said, that though the heir apparent, or next of kin, could not, in the case put, maintain a Bill; yet, if they had entered into any contract with respect to their expectancies, and possibilities, they might, upon the footing of that contract, maintain a Bill to perpetuate the 1 Knight v. Knight, 4 Madd. R. 8, 10. 2 Cooper, Eq. Pl. 52 ; Mason v. Goodburne, Rep. Temp. Finch, 391 ; 2 Story, Comm. on Equity Jurisp. 1511. 3 Dursley v. Fitzhardinge, 6 Ves: 260; Sackville v. Ayleworth, 1 Vern. 105 ; S. C. 1 Eq. Abridg. 234 ; Smith v. Attorney-General, cited 6 Ves. 260 ; 1 Fowler, Exch. Pr. 384; and in 15 Ves. 136; Mitf. Eq. Pl. by Jeremy, 51 ; Cooper, Eq. Pl. 52 - 54 ; Allan v. Allan, 15 Ves. 135, 136. • Allan v. Allan, 15 Ves. 135, 136. evidence. However; it is not every interest, which the Court will protect by perpetuating evidence; for if it be such an interest, as may be immediately barred by the party, against whom the Bill is brought, the Court will withhold its assistance; for it would be a fruitless exercise of power.2 § 302. On the other hand, it seems equally indispensable to a Bill of this kind, that it should state, that the defendant has, or pretends to have a title, or that he claims an interest to contest the title of the plaintiff in the subject-matter of the proposed testimony.3 For, unless the defendant has, or claims some such interest, it is utterly fruitless to perpetuate the testimony; since it can have no operation upon those, who are the real parties in interest. We have seen, however, that it will be sufficient to bind all the parties in interest to bring before the Court, those, who are judicially held to represent them all; as, for example, the first tenant in tail, who represents all subsequent interests.1 § 303. In the next place, the Bill must show some ground of necessity for perpetuating the evidence; as that the facts, to which the testimony of the witnesses, proposed to be examined, relate, cannot be immediately investigated in a Court of Law; or, if they can be so investigated, that the sole right of action belongs exclusively to the other party; or, that the other party has interposed some impediment (such as an injunction) to an immediate trial of the right in the suit at law; so that, before the investigation can take place, 1 Dursley v. Fitzhardinge, 6 Ves. 260, 261; Cooper, Eq. Pl. 53, 54. 2 Dursley v. Fitzhardinge, 6 Ves. 261-263; Cooper, Eq. Pl, 53. 3 Mitf. Eq. Pl. by Jeremy, 53; Dursley v. Fitzhardinge, 6 Ves. 260, 261; Cooper, Eq. Pl. 56; 1 Mont. Eq. Pl. 271. 4 Ante, § 144, 145; Cooper, Eq. Pl. 56. |