MONY. A party who has an interest in property, but not such an interest as enables him immediately to prosecute his claim, or a party who is in possession of property and fears that his right may at some future time be disputed, is entitled to examine witnesses in order to preserve that testimony, which may be lost by the death of such witnesses before he can prosecute his claim, or before he is called on to defend his right This is effected by such party filing a bill in equity against such persons as are interested in disput ing his claim, in which bill he prays that the testimony of his witnesses may be perpetuated. This is the only relief that the bill prays. If the prayer of the bill is granted, a commission issues to ex amine the witnesses, whose depositions are taken in the usual way in suits in equity. The depositions, when taken, are sealed up and retained in the custody of the court which grants the commission.
When they are required to be used as evidence, they can be so used, by per mission of the court, by the party who has filed his bill or those who claim under him, and they can be read by the direction of the court as evidence on a trial at law, if it is then proved that the witnesses are dead, or from any sufficient cause cannot attend. If the witnesses are living when the trial takes place, and can attend, they must be produced. A defendant to such a bill may join in the commission, and may examine witnesses under the commission, and he is entitled to use their depositions as evidence in his favour at a future trial. (1 Men, 434.) A bill to perpetuate testimony may be filed by any person who has a vested interest, however small, in that thing to which he lays claim. The parties, de fendants to such bill, are those who have some adverse interest to the plaintiff.