4. Whose Depositions May Be Taken, 365. 6. Averments of Petition, 366. a. In General, 366. b. Name and Address of Adverse Parties, 367. 7. Verification of Petition, 368. 8. Granting of Petition, 368. 10. Notice, 369. 11. Manner of Taking Deposition, 369. CROSS-REFERENCES. As to Bills de Bene Esse, see article BILLS de bene eSSE, vol. 3, P. 329. Examination of Parties Before Trial, see article EXAMINA- I. DEFINITION. - Perpetuation of testimony is the act by which testimony is reduced to writing as prescribed by law, so that the same may be read in evidence in some suit or legal proceeding to be thereafter instituted.1 II. BILLS TO PERPETUATE TESTIMONY - 1. Definition. —A bill to perpetuate testimony is a bill in equity, filed in order to procure the testimony of witnesses to be taken as to some matter not at the time before the courts, but which is likely at some future time to be in litigation." 1. Bouv. Law Dict., tit. Perpetuating Testimony. 2. Black's Law Dict., tit. Bill to Perpetuate Testimony. Origin. Bills both to take testimony de bene esse and to perpetuate testimony have their origin in an order of the Court of Chancery passed during the reign of Philip and Mary. Booker v. Booker, 20 Ga. 777. Distinguished from Bill of Discovery. A bill to perpetuate testimony is not a bill of discovery in the strict technical sense of the term. A bill of discovery must be in aid of proceedings pending, or about to be instituted, but the existence of such proceedings would be fatal to a bill to perpetuate testimony. Ellice v. Roupell, 32 Beav. 308. Cannot Be Converted into Bill of Discovery. A bill to perpetuate testimony cannot by amendment be converted into a bill of discovery. Ellice v. Roupell, 32 Beav. 308. Distinguished from Bill de Bene Esse. A bill to perpetuate testimony is distinguished from a bill de bene esse in that the right to maintain the former does not depend upon the condition of the witness, such as old age and infirmity, but upon the power of the party to have his rights immediately investigated. Hall v. Stout, 4 Del. Ch. 269. In this case the court said: "The allegation in the bill, as to old age and infirmity of the witnesses, is immaterial, and the denial and even disproof of it can have no effect. The distinction was well taken by the complainant's solicitor between a commis sion to take testimony de bene esse and a suit to perpetuate testimony. 2 Dan. Ch. Pr. 955; 2 Sto. Eq. Jur., $ 1513; Angell . Angell, 1 Sim. & S. 83. The former is granted only in aid of a suit pending, in which it is presumable that the rights in issue will be speedily determined; and there, to induce the court to interfere, the risk of losing the testimony must be imminent, as from the old age, infirmity, or expected removal of the witness, or where there is only one witness to a material fact. Commissions de bene esse and for the examination of witnesses resident abroad are not issued now by this court, except in aid of its own suits, the state constitution having vested in the courts of law the same power in suits there pending. Bills to perpetuate testimony proceed, not on the ground of imminent risk of loss before a pending suit can reach a trial, but on the ground that the party not being in a situation to bring his title to a trial, his evidence may be lost through lapse of time, a risk affecting all evidence, irrespective of any particular condition of a witness. The right to this relief, therefore, does not depend upon the condition of the witness, but upon the situation of the party and his power to bring his rights to an immediate investigation." In Georgia it has been held that every bill to take testimony de bene esse is a bill to perpetuate testimony, and every bill to perpetuate testimony is a bill to take testimony de bene esse, and that the evidence thus taken cannot be 2. Nature. A bill to perpetuate testimony is in its nature an original bill not for relief,1 and a bill of this character should not join a prayer for relief, since such joinder will render the bill multifarious, 3 3. Purpose. The object of a bill to perpetuate testimony is to preserve material evidence for future use, or, in some instances, to prevent litigation. On such a bill equity decides no rights, but simply assists a court of law in doing so by preserving testimony. 5 4. When Lies - Subject-Matter Likely to Be Litigated. The sole object of a bill to perpetuate testimony being to preserve material testimony which might otherwise be lost, a bill for such purpose will lie only where the subject-matter is likely to be litigated in the future, but cannot be made the subject of immediate judicial investigation. Decree Granting Prayer Final. A decree granting the prayer of a bill to perpetuate testimony and appointing commissioners to take such testimony is a final decree which may be reviewed on a writ of error. Jerome v. Jerome, 5 Conn. 356. 2. Jerome v. Jerome, 5 Conn. 352; Vaughan v. Fitzgerald, I Sch. & Lef. 316; Rose v. Gannel, 3 Atk. 439. That the bill is not legally sustain able cannot be questioned, as it unites distinct subjects which cannot be joined in the same application. It is a bill for the perpetuation of testimony and for relief. These subjects are perfectly distinct in their features, in the grounds upon which they may be sustained, and in their final causes, and it is an unquestionable rule that they cannot be united in the same bill." Jerome v. Jerome, 5 Conn. 352. 3. Etna L. Ins. Co. v. Smith, 73 Fed. Rep. 318, wherein it was held that a bill to cancel a policy of insurance would be dismissed if it also contained a demand for the perpetuation Effect of Prayer that Testimony Be Taken de Bene Esse. Where a bill sets forth all the facts necessary to entitle a party to an order to perpetuate the testimony of a witness, the fact that he has prayed that the testimony may be taken de bene esse does not change its distinctive character. Booker v. Booker, 20 Ga. 777. 4. Rapalje & Lawrence's Law Dict., tit. Bill to Perpetuate Testimony; Angell v. Angell, 1 Sim. & S. 83; Teale v. Teale, I Sim. & S. 385. 5. Smith v. Turner, 4 Ired. Eq. (N. Car.) 433. A bill to perpetuate testimony will not be entertained by a court of equity touching a subject of its own jurisdiction. Smith 7. Turner, 4 Ired. Eq. (N. Car.) 433. 6. 2 Story's Eq. Jur., § 1508; Booker v. Booker, 20 Ga. 777; Hall v. Stout, 4 Testimony in Danger of Being Lost. It is also essential to the maintenance of the bill that there be testimony in existence which is in danger of being lost before the matter to which it relates can be brought to trial.1 These bills do not proceed on the ground of imminent risk of loss before a pending suit can reach a trial, as do commissions de bene esse, but on the ground that a party not being in a situation to bring his title to a trial, his evidence may be lost through lapse of time, a risk affecting all evidence irrespective of any particular condition of a witness.2 Del. Ch. 269; New York, etc., Coffee Polishing Co. v. New York Coffee Polishing Co., 9 Fed. Rep. 578; Parry v. Rogers, 1 Vern. 441; Angell v. Angell, 1 Sim. & S. 83; Ellice v. Roupell, 32 Beav. 299. To Deprive a Party of This Relief it must appear that it lies in his own power, and not in the option of his adversary, to bring the title to a present judicial investigation. Hall v. Stout, 4 Del. Ch. 269. A bill to perpetuate testimony relating to a matter which is the subject of an existing suit against the plaintiff is demurrable, although the plaintiff could not himself have made such matter a subject of present judicial investigation. Spencer v. Peek, L. R. 3 Eq. 415. 1. The jurisdiction which courts of equity exercise to perpetuate testimony is open to great objections; first, it leads to a trial on written depositions, which is much less favorable to the cause of truth than the viva voce examination of witnesses. But what is still more important, inasmuch as those written depositions can never be used until after the death of the witnesses, and are not, indeed, published till after the death of the witnesses, it follows, whatever perjury may have been committed in those depositions, it must necessarily go unpunished. And this testimony has therefore this infirmity, that it is not given under the sanction of the penalties which the general policy of the law imposes upon the crime of perjury. It is for these reasons that courts of equity do not entertain bills to perpetuate testimony generally for the purpose of being used upon future occasion, unless where it is absolutely necessary to prevent a failure of justice.' Angell v. Angell, I Sim. & S. 83. "If witnesses to a disputable fact are old and infirm, it is very usual to file a bill to perpetuate the testimony of those witnesses, although no suit is depending; for, it may be, a man's an. tagonist only waits for the death of some of them to begin his suit. This is most frequent when lands are devised by will away from the heir at law; and the devisee, in order to perpetuate the testimony of the witnesses to such will, exhibits a bill in chancery against the heir, and sets forth the will verbatim therein, suggesting that the heir is inclined to dispute its validity; and then, the defendant having answered, they proceed to issue as in other cases, and examine the witnesses to the will; after which the cause is at an end, without proceeding to any decree, no relief being prayed by the bill, but the heir is entitled to his costs, even though he contest the will. This is what is usually meant by proving a will in chancery." 3 Black. Com. 450. 2. Hall v. Stout, 4 Del. Ch. 269. The course which this court always adopts, in bills to perpetuate testimony, is very simple and straightforward. Where a person files such a bill raising an issue which can be tried at once at law, this court holds that it is not a proper case for a bill to perpetuate testimony; on the contrary, as the evidence when taken cannot be used if the witnesses are alive, and as the depositions are sealed up and can only be used when the case arises hereafter, it would be idle for this court, when the question might be tried at once, and the witnesses themselves might be examined, to perpetuate their testimony. If the case depends solely upon the testimony of one witness, or of witnesses who were very old, then the court allows that person to be examined de bene esse without the necessity of a bill to perpetuate testimony. But where a person in possession of an estate hears that another intends to impeach his title, upon the ground that the title deed by which he holds the Impediment of Trying Case at Law. In order to sustain a bill to perpetuate testimony it should appear that the complainant is under an impediment of trying the case at law. 1 Nature of Title or Claim. The bill will lie without regard to whether the title or claim is to real estate, or personal property, or to mere personal demands, or to whether the testimony is to be used in support of an action, or as matter of defense to repel it. 2 Public and Private Penalties. The bill will lie not only in cases of a private penalty or forfeiture, without waiving it, where it may be waived, but also in cases of public penalties, and in this estate is a forgery, then, as the person in possession can take no step to establish his title, and as the person out of possession will not bring an ejectment against him until his witnesses are dead, it has always been held that the person in possession may file a bill to perpetuate the testimony of his own witnesses, in order to frustrate the design of the person who delays bringing forward his case until the witnesses who can speak to the truth of the defense are no longer in existence." Ellice v. Roupell, 32 Beav. 299. Evidence of Title to Land. Where the plaintiff was in possession of lands of his deceased wife, claiming as tenant by curtesy, it was held that he was entitled to a bill to perpetuate evidence of his title resting exclusively in the knowledge of two witnesses, notwithstanding the heirs at law were contesting his title and had brought ejectment, and although the witnesses were neither aged nor infirm. Hall v. Stout, 4 Del. Ch. 269. In this case the court said: "The complainant, at the filing of his bill, was in the exact situation entitling a party to the relief sought by the bill. He was in possession of lands of his deceased wife, claiming to hold as tenant by the curtesy. This was unquestionably a sufficient interest to be protected. Evidence material to his title rested in the exclusive knowledge of two witnesses; and being himself in possession, it was not in his power to bring the title to a trial at law under immediate judicial investigation, so as to secure the evidence against loss by the death of these witnesses. These are the grounds of this sort of relief. Dorset . Girdler, Pre. Ch. 531; Angell v. Angell, 1 Sim. & S. 83; 2 Sto. Eq. Jur., § 1508. The bringing of the ejectment by the defendants after the bill was filed does not relieve 3 the complainant from the risk to his title, even as to the house for which the ejectment is brought, for, however probable that the action will reach a trial, this cannot be certain to the complainant. Were a commission to perpetuate this testimony to be now refused because that action is pending, the defendants might, immediately and before a commission could issue from the Superior Court, discontinue the ejectment and leave the complainant precisely where he was at the filing of his bill, and so toties quoties. To deprive the complainant of this relief it must appear to rest in his own power, and not at all in the option of his adversary, whether to bring the title to a present judicial investigation. This is the clear principle of the two leading authorities before cited." 1. In Parry v. Rogers, 1 Vern. 441, it is held that a man cannot bring a bill to examine witnesses in perpetuam rei memoriam to establish his title until he has made it good by a verdict at law, if he is under no impediment of trying his title cases at law. In this case the bill was to examine witnesses touching the title of certain lands in the bill mentioned. The defendant demurred because there was no impediment that hindered the plaintiff from trying his right at law, and that he had not obtained any verdict in affirmation of his pretended title, and the demurrer was allowed. And see generally supra, 2. Nature; 3. Purpose; infra, 7. e. Neces sity for Perpetuation. 2. Suffolk v. Green, 1 Atk. 450. 3. Suffolk v. Green, 1 Atk. 450. In this case it was held that a plaintiff is entitled to perpetuate the testimony of witnesses to a usurious contract, notwithstanding his not offering by the bill to pay. |