CHAPTER VII.

BILLS NOT PRAYING RELIEF

BILLS TO PERPETUATE

TESTIMONY, AND ΤΟ 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 seen1) 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.

2

§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.3 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, § 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.

4 See Mason v. Goodburne, Rep. Temp. Finch, 391.

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, 2 Story, Comm. on Equity Jurisp. § 1511.

391;

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. 4 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. 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.

the evidence of a material witness is likely to be lost by his death or departure from the country.

In the

66

1 Mitf. Eq. Pl. by Jeremy, 52, 148, and note (y); North v. Gray, 1 Dick. 14; Cox v. Colley, 1 Dick. R. 55; Dorset v. Girdle, Prec. Ch. 531. Lord Redesdale's language is general; "Or, that before the facts can be investigated in a Court of Law, the evidence of a material witness is likely to be lost by his death, or departure from the realm;" without the qualifications stated in the text. Upon this passage, Mr. Jeremy has given the following note. According to the latter part of this proposition, the right of action may be either in the plaintiff or defendant in Equity. With reference to the defendant, the time of bringing the action depending upon his will, the situation of the plaintiff would be similar to that intimated in the former part of the proposition in the text, 1 Sim. & Stu. 89; and with respect to the plaintiff, it must be understood to relate to the case of his not being able at present to sustain an action. Cox v. Colley, 1 Dick. 55; 1 Sim. & Stu. 114; for, if he should have such present right, his object could only be, what is technically termed an examination de bene esse, upon the ground of his having only one witness to a matter, on which his claim depends, or, if he has more, on the ground of their being aged, or too ill or infirm to attend in a Court of Law; and that he is therefore likely to lose their testimony before the time of trial, 1 Sim. & Stu. 90; in which case it seems, that it ought to be stated in the Bill, that the action was brought before the same was filed. Angell v. Angell, 1 Sim. & Stu. 83. On the general subject, see the cases cited, 1 Sim. & Stu. 93, note, and Teale v. Teale, 1 Sim. & Stu. 385." In Cox v. Colley, 1 Dick. R. 55, the plaintiff had brought an ejectment at law. But the proceedings were stayed by an injunction, which was procured by the defendant at law; and the plaintiff brought his Bill in Equity, to perpetuate the testimony; and on demurrer the Bill was sustained. Sir John Leach, in Angell v. Angell, 1 Sim. & Stu. 83, stated very fully the grounds, upon which this sort of Bill is maintainable; and the distinction between it and a commission to take testimony de bene esse. His language was; "If it be possible, that the matter in question can, by the party, who files the Bill, be made the subject of immediate judicial investigation, no such suit is entertained. But if the party, who files the Bill, can, by no means, bring the matter in question into present judicial investigation (which may happen, when this title is in remainder, or when he is himself in possession), there, Courts of Equity will entertain such a suit; for, otherwise, the only testimony, which could support the plaintiff's title, might be lost by the deaths of his witnesses. Where he is himself in possession, the adverse party might purposely delay his claim, with a view to that event. It is, therefore, ground of demurrer to a Bill to perpetuate testimony, generally, that it is not alleged by the plaintiff, that the matter in question cannot be made by him the subject of present judicial

2

former case, the Bill must allege, that the plaintiff is in possession of the property, or the right, without any disturbance by the other party, upon which an action at law can be founded.' In the latter case, the Bill must allege the specific facts, on which the plaintiff puts his case; and also, that the witnesses are old, or infirm, or in ill health, and not likely to live; or that he has no present right to maintain an action; as if he have a title in remainder or reversion only after a present existing estate for life. Without such allegations, the Bill will be clearly demurrable; since, if the subject-matter is capable of being immediately investigated at law, there is no ground to perpetuate the testimony; but it will be the party's own laches not so to try his right. If an action be actually pending,

investigation. But Courts of Equity do not merely entertain a jurisdiction to take or preserve testimony generally, to be used on a future occasion, where no present action can be brought; but also, to take and preserve testimony, in special cases, in aid of a trial at law, where the subject admits of present investigation. At law, no commission to examine witnesses, who are abroad, for the purpose of being used at the trial, can go without the consent of the adverse party. Courts of Equity will, upon a Bill filed, grant such commission without the consent of the adverse party. So, Courts of Equity will entertain a Bill to preserve the testimony of aged and infirm witnesses, to be used at the trial at law, if they are likely to die before the time of trial can arrive; and will even entertain such a Bill to preserve the testimony of a witness who is neither aged nor infirm, if he happen to be the single witness to support the case. In Moodalay v. Morton, 2 Dick. R. 652; S. C. 1 Bro. Ch. R. 469, a Bill to perpetuate testimony was allowed, where there was a present right of action. But that case was founded in special circumstances, perfectly consistent with the general rule; for the object of the testimony was to ascertain against whom the action should be brought, as the plaintiff had no present means of knowing, who that party was.

1 Cooper, Eq. Pl, 53; Mitf. Eq. Pl. by Jeremy, 51, 52, 148, 149; Wyatt, Pr. Reg. 74.

2 Mitf. Eq. Pl. by Jeremy, 52; Mason v. Goodburne, Rep. Temp. Finch, 391.

3 Dursley v. Fitzhardinge, 6 Ves. 260, 261.