SECTION IV.

Of the Examination of Witnesses - de bene esse.

THE practice of examining witnesses de bene esse is an old one in the Court of Chancery. The value of the practice is most materially diminished in consequence of the changes in modern practice, by the operation of which the length of time intervening between the institution of a suit and its coming to an issue is most materially abridged. Still the practice is not quite obsolete and has never been repealed; consequently, a few words must be devoted to an explanation of it. The practice is derived from the Civil Law.

The examination of a witness de bene esse takes place where there is danger of losing the testimony of an important witness from death, by reason of age (as where the witness is seventy years old and upwards;1 or dangerous illness; 2 or where he is the only witness to an important fact;3 in such cases the Court, to prevent the party from being deprived of the benefit of his evidence, will permit his examination to be taken before the cause is at issue, in order that, if the witness die, or be not forthcoming to be examined after issue joined, the examination so taken may be used at the hearing.*

competent person, by you for that purpose to be appointed and authorized, at a precise time and place by you to be fixed, and there to answer on their oaths and affirmations, to the several interrogatories hereunto annexed; and that you will cause their depositions to be committed to writing, and returned to us under cover, duly closed and sealed up, together with these presents. And we shall be ready and willing to do the same for you in a similar case, when required. Witness, &c.

1 Rowe v.

13 Ves. 261; Lingan v. Henderson, 1 Bland, 238; McKenna v. Everitt, 2 Beav. 188; Ails v. Sublit, 3 Bibb. 204.

Bellamy v. Jones, 8 Ves. 31. See Clark v. Dibble, 16 Wendell, 601.

Shirley v. Earl Ferrers, 3 P. Wms. 77; Pearson v. Ward, 2 Dick. 648; Brydges v. Hatch, 1 Cox, 423. In Earl Cholmondeley v. The Earl of Orford, 4 Bro. C. C. 157, two witnesses were ordered to be examined de bene esse, being the only persons who knew material facts.

• Hind. 368. 2 Phil. Ev. (Cowen & Hill's notes,) note (42) pp. 38 and 39, and cases cited; 2 Story Eq. Jur. § 1513 to 1516; Story Eq. Pl. § 307 to 310. By the 70th Equity Rule of the United States Courts, it is provided that "After any bill is filed, and before the defendant hath answered the same, upon affidavit made, that any of the plaintiff's witnesses are aged, or infirm, or going out of the country, or that any of them is a single witness to a material fact, the

The examination of witnesses de bene esse must be distinguished from the practice of suits to perpetuate testimony. The former may be incidental to every suit, whereas the examination for the purpose of perpetuating the testimony is the fruit of a suit instituted for that particular purpose; it may even be incidental to a suit to perpetuate testimony, where there is danger that the evidence of the witnesses whose testimony is intended to be perpetuated being lost before the suit for perpetuating is ripe for a regular examination.1

It is to be observed, that, in general, the Court has not allowed the examination of a witness de bene esse, with a view to ulterior proceedings, such as the trial of an issue. The changes, however, both in the practice of Common Law Courts and in Equity make the old cases scarcely applicable.

The cases in which the Court has made an order for the examination of witnesses de bene esse were not confined to those of age or sickness, or in which the witness is the only person who can speak to the fact intended to be proved. The Court has given permission for such an examination of witnesses in other cases which come within the same principle; indeed it did so wherever the justice of the case appeared to require it. Thus where an application was made to examine the surviving witness to a will de bene esse, on the ground that the parties concerned all lived in America, and that the surviving witness was ill, the order was made, although the witness was not stated to be more than " upwards of sixty years old." 8

The Court, however, will not permit the examination of witnesses de bene esse, on the ground of their being about to go abroad, where it is in the power of the party applying to detain them till they had been examined in the ordinary course.*

clerk of the Court shall, as of course, upon the application of the plaintiff, issue a commission to such Commissioner or Commissioners, as a Judge of the Court may direct, to take the examination of such witness or witnesses de bene esse, upon giving due notice to the adverse party of the time and place of taking the testimony."

Frere v. Green, 19 Ves. 319.

* Palmer v. Lord Aylesbury, 15 Ves. 299; Anon. cited by Lord Eldon, ibid.; Anon. 6 Ves. 573; Forsyth v. Ellice, 2 Mac. & Gor. 209.

' Fitzhugh v. Lee, 1 Amb. 65; but in such cases an ex parte order is irregular ; see M'Kenna v. Everitt, 2 Beav. 188; and see Jepson v. Greenaway, 2 Fowl. Ex. Pr. 103; M'Intosh v. Great Western Railway Company, 1 Hare, 328.

• The East India Company v. Naish, Bunb. 320. Where a witness is about to .

It seems, also, that, in a question of pedigree, where the case depends upon a chain of distinct circumstances in the knowledge of different individuals, the death of one of whom would destroy the whole chain, the Court have permitted the examination of such individuals de bene esse, although none of them came within the description of witnesses whose testimony was in danger of being lost either from age or serious illness.1

The rule, however, that the examination of a witness de bene esse will be permitted where the individual proposed to be examined is the only witness, will not be extended to cases where there is more than one witness to the same fact, unless upon the ground of the age or infirmity of the witness.2

The same rules which applied to the examination of parties to the record in ordinary course, were applicable to their examination de bene esse; consequently it is presumed that the new practice would apply to them.8

A defendant, although he may, equally with the plaintiff, examine a witness de bene esse, could not obtain an order for that purpose before he had put in his answer.5

The application for leave to examine a witness de bene esse, must, in every instance, whether made by petition at the Rolls or by motion to the Court, with notice or without, be supported by an affidavit of the facts which form the ground of the application, depart from the State, to reside abroad, the Court, on petition, verified by affidavit and motion for that purpose, will order him to be examined de bene`esse, without previous notice of the motion. Rockwell v. Folsom, 4 John. Ch. 165. In South Carolina, an attorney, prevented from being a witness by duties in another Court, may be examined de bene esse, by commission. Huffman v. Barkley, 1 Bailey, 34. So if the witness is going from one State to another. Story Eq. Pl. § 308.

1 Shelley v.

13 Ves. 56. See also Shirley v. Earl Ferrers, 3 P. Wms. 77. 1 P. Wms. 595; Brown

2 Anon. 19 Ves. 321; Mayor, &c. of Colchester v.

v. Greenly, 2 Dick, 504.

Forbes v. Forbes, 9 Hare, 461.

Williams v. Williams, 1 Dick. 92; Sheward v. Sheward, 2 V. & B. 116. Williams v. Williams, ubi supra; Forbes v. Forbes, 9 Hare, 461. But the Court will order a witness to be examined de bene esse in a cause, on the application of the plaintiff, before an answer has been put in, provided the necessity for taking his deposition is satisfactorily shown by affidavit; Fort v. Ragusin, 2 John. Ch. 146; see Bown v. Child, 3 Sim. 457; and even before appearance, provided the defendant has been served with a subpoena. Wilson v. Wilson, cited 1 Newl. Ch. Pr. 287. See Allen v. Annesley, 2 Jones Exch. 260; Dew v. Clarke, 1 S. & S. 108.

such as the age of the witness, &c., and that he is a material witness for the party making the application.1 Where an application is made for an order to examine a witness on the ground that he is the only person who knows the fact, the affidavit should state the particular points to which his evidence is meant to apply;2 and it should be shown, not only that the witness is a person who knows the fact, but that he is the only person who knows it, and the affidavit should also show the ground which the person who makes it has for believing that the witness is the only person.3

The order to examine witnesses de bene esse, gives liberty to examine such and such witnesses nominatim, and will only authorize the examination of the persons named therein. Where it is obtained, without notice, after appearance, it must be served upon the solicitor on the other side. Where it has been obtained before appearance, so that there is no adverse solicitor upon whom it can. be served, it must be served on the adverse party himself, for which purpose the order usually directs that "notice of the order be given to the defendants respectively, or a copy thereof left at their dwelling-houses or usual places of abode, with their servants, agents, or other persons residing there, ten days at least before the examination of the witness." 4

With respect to the costs of examinations de bene esse, no specific rule appears to have been laid down which makes any distinction between them and the costs of examinations under ordinary circumstances, except, indeed, in the case of bills filed for the purpose of having witnesses examined de bene esse, in order to render their evidence available on a trial at Law. In such cases, it is presumed, the costs must be regulated by the rule of the Court with regard to bills of a similar description, viz., bills to examine witnesses in perpetuam rei memoriam, in which case a defendant is entitled to apply for his costs immediately after the examination of

1 See Rockwell v. Folsom, 4 John. Ch. 165; Story Eq. Pl. § 309.

* Pearson v. Ward, 1 Cox, 177; 2 Dick. 648, S. C.; Hope v. Hope, 3 Beav. 317.

Rowe v.1 13 Ves. 261. See also Pearson v. Ward, cited 1 Harr. ed. Newl. 278. See Grove v. Young, 3 De G. & Sm. 398. The affidavit should give the place of residence and description of the witnesses whom it is sought to have examined de bene esse. O'Farrel v. O'Farrel, 1 Moll. 364.

The statute of Illinois authorizes a person filing a bill, before issue joined, to take depositions substantiating its averments; and without an order to that effect, he may proceed to take his depositions de bene esse. Doyle v. Wiley, 15 Ill. 576.

the witnesses has been perfected, upon the simple allegation that he did not examine any witnesses himself.1

SECTION V.

Demurrers by Witnesses.

WE have seen that a witness is still able to protect himself from answering a question to which he has a legal objection by demurrer.3

The grounds upon which a witness may protect himself from answering to interrogatories are nearly the same as some of those which a defendant has a right to insist upon as a reason for not giving the discovery required by a bill. These are, principally: That they may subject the witness to pains and penalties, or to a forfeiture, or something in the nature of a forfeiture; or, that the witness cannot answer the interrogatory without a breach of professional confidence.

1. With respect to the first ground of objection to interrogatories by a witness, namely, that the answer to them may expose him to pains and penalties, or to a forfeiture, or something in the nature of a forfeiture, the reader is referred to a former part of this Treatise, where the privilege of a defendant to be protected from making the discovery required by the bill on this ground has been discussed. He will there find, that the privilege in such cases arises from an acknowledged principle of Law, that no man is bound 1 Foulds v. Midgley, 1 V. & B. 138.

* Ante, p. 890.

A witness may, on assigning cause, demur to the questions propounded to him; upon which the examination must be suspended until the Court decides. Winder v. Diffenderffer, 2 Bland, 166. Counsel have no right to advise a witness that he is not bound to answer a particular interrogatory. It is the duty of the Examiner to inform a witness of his legal rights. Taylor v. Wood, 2 Edw. Ch. 94; 1 Hoff. Ch. Pr. 466. A witness who demurs to a question, is not the proper person to bring it before the Court. If the party putting the question does not ask for an attachment, nor in any way bring the point before the Court, no one else can. The question will be considered as waived, or the demurrer well taken unless he who puts the question persists in it, and takes measures to have the demurrer disposed of. Mowatt v. Graham, 1 Edw. Ch. 13.

See ante, p. 589.

Ante, p. 589. See also Phil. & Amos. 913.