irreparable loss of all the evidence, on which he may rely in support of his right in the trial at law; for that, which depends upon a single life, must be practically treated as being very uncertain in its duration.1 § 1515. In regard to commissions to take the testimony of witnesses abroad, although they are grantable in civil actions only; yet they are not confined to cases purely ex contractu, or touching rights of property; but they are grantable in cases of suits for civil torts, although such torts may also be indictable. Thus, for example, a commission will be granted to take the testimony of witnesses abroad, in order to establish a justification in a civil suit for a libel, although the justification involves a criminal charge against the plaintiff, and the libel may be the subject of an indictment.2 § 1516. Some confusion exists in the authorities as to the publication of the testimony in the three distinct classes of cases before mentioned: first, on examinations of witnesses de bene esse, pending a cause; secondly, on examinations of witnesses in a bill, merely to prove a will, per testes, as it is called, that is, by the subscribing witnesses; and thirdly, on examinations of witnesses on common bills to perpetuate testimony; as, for example, to perpetuate the testimony respecting a will, or a deed, or a modus, or the legitimacy of a marriage. The true rule as to the publication of the testimony in these several classes of cases is as follows. As to the first, the examinations are not published, but by the consent of the parties, or on a strong case made to the court.4 As to the second, they stand on a distinct ground, because none but subscribing witnesses are examined; and they are examined to 1 Mitford, Eq. Pl. by Jeremy, 150; Shirley v. Earl Ferrers, 3 P. Will. 77. 2 Macaulay v. Shackell, 1 Bligh (N. s.), 96, 126, 127, 129. 3 Harris v. Cotterell, 3 Meriv. 680; ante, § 1506. Ibid.; Gilb. For. Roman. 140. As, for example, upon proof that the witness is since dead, or is unable to attend the trial at law. Webster v. Pawson, 2 Dick. 540; Price v. Bridgman, 1 Dick. 144; Bradley v. Crackenthorp, 1 Dick. 182; Gason v. Wordsworth, 2 Ves. 336, 337; Dew v. Clarke, 1 Sim. & Stu. 108; Gilb. Forum Roman. 140. If the witness is alive at the time of the trial, and capable of attending, and within the jurisdiction, his deposition cannot be used. If the case be a bill in equity, and the testimony is taken de bene esse, and the witness is living and within the jurisdiction when the examinations are to be taken in chief, he must be examined over again as other witnesses. Gilb. Forum Roman. 140, 141. See also Harrison's Pract. by Newland, p. 277 to 280, edit. the question of the sanity of the testator merely, as incidental; and their publication is of course. As to the third, publication is not ordinarily allowed, during the lifetime of the witnesses, because of the dangers incident thereto, there being no limits as to the points to which the witnesses are examined.2 But the publication is a matter resting in the sound discretion of the court, upon the special circumstances of the case; and it will be allowed. or refused accordingly.3 In this last class of cases (of bills to perpetuate testimony), when the examinations are taken, the case is considered to be at an end; or at least as suspended, until the anticipated action is brought; and then, at a suitable period, an order for the publication thereof may be obtained from the court upon a proper case made, such as the death or absence of the witnesses, or their inability to attend the trial.4 1 Harris v. Cotterell, 3 Meriv. 678 to 680; ante, § 1506. 2 Barnsdale v. Lowe, 2 Russ. & Mylne, 142. 3 Harris v. Cotterell, 3 Meriv. 678 to 680. However, it is said, that there are very few cases in which a publication has ever been ordered during the lifetime of the witnesses. Barnsdale v. Lowe, 2 Russ. & Mylne, 142. As to some, in which it has been ordered, doubts have been expressed. Ibid.; Wyatt, Pract. Reg. 73. 4 Abergavenny v. Powell, 1 Meriv. 433; Teale v. Teale, 1 Sim. & Stu. 385; Morrison v. Arnold, 19 Ves. 671. In the case of Morrison v. Arnold (19 Ves. 671), Lord Eldon used the following language: "The question upon the motion to publish these depositions, the witnesses being still living, is, What is the practice where witnesses have been examined, not de bene esse, but upon a different principle, to have their testimony recorded in perpetuam rei memoriam; the course being in a suit for that purpose, that, after the examination of the witnesses, there is an end of the cause? It is laid down in the text-books, that, ordinarily, the depositions cannot be published during the lives of the witnesses; and that doctrine appears to be as old as the time of Lord Egerton, who regretted that such was the practice, upon the inconvenience, that, if the facts stated by the witness are false, that cannot be established against him in any species of prosecution; as that fact can only be established by the production of the deposition, which cannot be produced until the witness is dead. That word, ordinarily, which is found in most of the books of practice on this subject, struck me as large enough to admit the exercise of a sound discretion by the court; and it seems to be capable of another construction; as there are cases, where the depositions may be published, although the witness is not dead; if, for instance, he is too infirm to travel. The general rule, I am persuaded is, not to permit the deposition to be read during the life of the witness; and I think it will appear, that such orders as are to be found proceed upon affidavit that the witness is dead; and some after the declaration, that the deposition of the particular witness shall be read, and, with a considerable degree of caution, that the depositions of CHAPTER XLIII. PECULIAR DEFENCES AND PROOFS IN EQUITY. [* § 1517. General reflections. § 1518-1521 b, 1520 c. Bar to proceedings in equity resulting from the statute of limitations, lapse of time, and acquiescence. § 1520 d. Subject further discussed with reference to late cases. § 1522, 1522 a. Part-performance takes cases out of the statute of frauds. § 1522 b. Acts of part-performance discussed with reference to late decisions. § 1523. Former recovery or decree, a bar. § 1524. Effect of an account stated. § 1525. Plea of bonâ fide purchase. § 1526. Want of proper parties, a defence. § 1527. Evidence. Depositions. § 1528. Testimony of defendant; its effect. § 1529. Must be responsive to bill. § 1517. WE have thus reviewed the principal topics of equity jurisprudence, as connected with the three great divisions of its jurisdiction, namely, its concurrent jurisdiction, its exclusive jurisdiction, and its auxiliary jurisdiction. Imperfect as this exposi tion of it necessarily has been from the vast mass and variety of the materials, as well as from the intrinsic difficulty of ascertaining, in many cases, the exact limits and boundaries of its operations, enough has been shown to enable the attentive reader to ascertain the general outlines and proportions of the system, and its beautiful adaptations to the general concerns and actual business of human life. He cannot fail to have observed to what an the other witnesses shall not be read; affording both affirmative and negative evidence of the practice." He afterwards added: "After considerable research there is not a single instance, except of a person sick, incapable of travelling, or prevented by accident; all the orders, but in those excepted cases, stating that the witness is dead. And, though struck with the circumstance, that he swears with considerable security, as the depositions are not to be opened until after his death, I am afraid to make a precedent contrary to all the authorities; and further, looking at the first will, and what the trustees under it are about, I doubt, whether a bill to perpetuate testimony is, in this particular case, exactly the bill that should have been filed." immeasurable extent, beyond the prescribed bounds of the common law, its remedial justice reaches; with what wonderful flexibility it applies itself to all the changing circumstances which require the relief to be modified and adjusted with a nice regard to the rights and interests, and even to the compassionate claims of the adverse parties; and by what a curious, though artificial machinery, it sifts the consciences of the parties, and detects the latent springs of actions, and draws, as it were, from the secret recesses of the heart, its hidden purposes, and its yet questionable designs. He cannot fail to have observed with what deep solicitude and promptitude it interferes in cases of fraud, accident, and mistake; how eager it is to succor the distressed; to assist the infirm; to protect the weak; to guard the credulous against the arts of the cunning and profligate; and to save the rash and inexperienced from the natural effects of their own acts of folly, and their own misguided and violated confidence. He cannot fail to have approved its bold, and sometimes even stern, denunciations against vice and craftiness; its uncompromising support of the purest morality; and its unflinching resistance to oppression and meditated wrong. Above all, he cannot fail to have been struck with that admirable invention of judicial policy, which interposes preventive guards against impending dangers and mischiefs; and which does not, like the slow and reluctant arm of the common law, wait until the destructive blow has been dealt, and then content itself with an attempt to remedy in damages, what may be, in a just sense, incapable of compensation. If, here and there, he shall have seen an artificial doctrine reared up, which it is now difficult to vindicate upon sound reasoning, or public convenience, let him consider, that it occupies but a narrow space in the general system; that it is the necessary result of the different modes of thought, in different ages; and that, if it has the touch of human infirmity in its structure, its very failings lean to virtue's side, and serve, in some degree, to fence in as well as to embarrass, the interests of those who stand in constant need of the guardianship of the law. Let him also remember the profound remark of Lord Bacon, that there are in nature certain fountains of justice, whence all civil laws are derived, but as streams; yet, that, like as waters do take tinctures and tastes from the very soils through which they run, so do civil laws vary, according to the regions or governments where they are planted, though they pro ceed from the same fountains. If he should perceive, that even equity jurisprudence has its blemishes and imperfections in its inability to reach some cases of gross injustice, or of violated right and duty, and he should be tempted to utter the lamentation of an eminent jurist of antiquity, that we do not seek to cherish the solid and expressive form of true law and genuine justice; but that we content ourselves with the mere shadow and semblance of it; nay, that even these we do not follow, as it is desirable we should do, since they are drawn from the best examples of nature and truth; let him also ponder on the consoling truth, so beautifully expressed by the same master-mind, that the wisdom of laws, in stooping to the concerns of human life, must necessarily stop far short of the wisdom of philosophy.3 § 1518. We shall close the present work by adverting to a few peculiarities of equity jurisdiction, for which a more appropriate place has not been found; or which, if noticed before, seem fit to be brought again into view, before they are finally dismissed. § 1519. There are some defences which are peculiar to courts of equity, and are unknown to courts of common law. So, also, there are some peculiarities in relation to evidence, unknown to the practice of the latter courts, which yet lie at the very foundation of the practice of the former. Upon each of these subjects we shall say a few words, by way of illustration, leaving the full exposition of them to works more appropriate for that purpose. § 1520. In the first place, as to defences peculiar to courts of equity; for of those which are equally available at law we do not here propose to speak. The statutes of limitations, where they are addressed to courts of equity, as well as to courts of law, as they seem to be in all cases of concurrent jurisdiction at law and in equity (as, for example, in matters of account) to which they directly apply, seem equally obligatory in each court. It has been very justly observed, that in such cases courts of equity do not act 1 Lord Bacon's Works, Advancement of Learning, p. 219 (London edit. 1803). Sed nos veri juris, germanæque justitiæ, solidam et expressam effigiem nullam tenemus; umbrà et imaginibus utimur; eas ipsas utinam sequeremur! Feruntur enim ex optimis naturæ et veritatis exemplis. Cic. De Offic. Lib. 3, § 17. Sed aliter leges, aliter philosophi, tollunt astutias. Leges quâtenus manu tenere possunt; philosophi quâtenus ratione et intelligentiâ. Ibid. • Ante, § 55, 529, 975. |