BILL TO PERPETUATE TESTI MONY. In Equity Practice. One which is brought to secure the testimony of wit nesses with reference to some matter which is not in litigation, but is liable to become so.
It differs from a bill to take testimony de bene ewe, inasmuch as the latter is sustainable only when there is a suit already depending. It is ue murrable to if it contain a prayer for relief. 1 Dick. Ch. 98; 2 P. Will. 182; 2 Ves. Ch. 497; 2 Madd. Ch. 37. And see 1 Schoales & L. Ch. Ir. 316.
2. It must show the subject-matter touch ing. which the plaintiff is desirous of giving evidence, Rep. temp.' Finch, 391; 4 Madd. Ch. 8, 10; that the plaintiff has a positive interest in the subject-matter, which may be endangered if the testimony in support of it be lost, as a mere expectancy, however strong, is not sufficient, 6 Ves. Ch. 260; 1 Vern. Ch. 105 ; 15 Ves. Ch. 136; Mitford, Eq. Pl. by
Jeremy, 51; Cooper, Eq. Pl. 52; that the de fendant has, or pretends to have, or that he claims, an interest to contest the title of the plaintiff in the subject-matter of the pro posed testimony, Cooper, Plead. 56 ; Story, Eq. Plead. 302; and some ground of neces sity for perpetuating the evidence. Story, Eq. Plead. 303; Mitford, Eq. Plead. by Jeremy, 62, 148, n.; Cooper, Ect. Plead. 53.
The bill should describe the right in which it is brought with reasonable certainty, so as to point the proper interrogations on both sides to the true merits of the controversy, 1 Vern. Ch. 312; Cooper, Plead. 56; and should pray leave to examine the witnesses touching the matter stared, to the end that their testimony may be preserved and per petuated. 111,tford, Eq, Plead. 52.