PERPETUATION OF TESTIMON Y. A party who has an interest in property, but not such an interest as enables him Im. mediately to prosecute his claim, or a party who Is in possession of property and fears that his right may at some future time be dis puted, is entitled to examine witnesses in order to preserve that testimony, which may be lost by the death of such witnesses before be can prosecute his :skim, or before he is called on to defend his right. This IA effected by such party filing a bill in equity against such perutu: as are interested In disputing 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 le granted, the evidence of the witnesses will be taken in the usual way. The depositions, when taken, are sealed up and retained in the custody of the court. When they are required to be used as evidence, they can be so used, by permission of the court, by the party who has filed his bill or those who claim under him, end they can be read by the direction of the court as evidence on • trial at law, if it is then proved that the witnesses are dead, or from any suflleient cause can not 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 cross-examine the witnesses 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, defendants to such bill, are those who have adverse interest to the plaintiff. In order that the testimony which the plaintiff seeks to perpetuate may be good evidence for him at the trial, he must make all proper parties defendants to his bill, who may be generally described to be such persons as would be necessary parties to a bill in equity by the plaintiff to enforce or maintain his rights, if a court of equity could take cognisance of the matter, and the question between the plaintiff and such parties could then be raised. The
evidence so taken may be read at the hearing of a cause, or at a trial at common law against all such parties to the bill, and those who claim through or under them. The act 5 & 6 Vict., c. 69, entitled " an act for perpetuating testimony in certain cases" makes no change in the procedure of the courts in suits of this kind.
A bill to perpetuate testimony must not be confounded with th practice of examinina. witnesses De bene esse. The bill to perpetuate testimony has been already described. The examination of witnesses De bene ease is only resorted to when an action has been brought, and the plaintiff is afraid that his witnesses, owing to age or infirmity, may die before the trial can take place, or he has only one witness to au important fact. Both these are iu a sense proceedings to preserve or perpetuate testimony ; but the one is applicable before the matter which may be in dispute can be the subject of judicial investigation, and the other when an action has been already brought. But under the reformed practice of the courts of chancery and common law a bill to examine witnesses De bone esse appears to be no longer necessary.
Witnesses may be examined De bene ease in a suit in equity, when it is necessary to secure their evidence at a period of the suit prior to the regular time for examination of witnesses in the cause. But this is only a provisional examination, and the evidence can only be used in case the witnesses cannot be examined at the proper time for the examination of witnesses in the cause. The value of the practice is much diminished in consequence of changes in modern practice, by the operation of which the length of time between the institution of a suit and its corning to the issue is greatly abridged. (Daniel's Ch. Pract.,' 3rd ed., p. 736.)