BILL TO PERPETUATE TESTIMONY. One which is brought to secure the testimony of witnesses 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 esse (q. v.) inasmuch as the latter is sustainable only when there is a suit already pending.
A bill to perpetuate testimony "lies when the party is in actual, undisturbed posses sion; or where lands are devised by will from the heir at law ; or when no action has been brought, but the party intends to commence a suit." Hickman v. Hickman, 1 Del. Ch. 133. It proceeds 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 ev idence, irrespective of the condition of a witness; Hall v. Stout, 4 Del. Ch. 269.
It must show the' subject-matter touching which the plaintiff is desirous of giving evi dence; Rep. temp. Finch 391; 4 Madd. 8 ; 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; Mitf. Eq. Pl. 51; May v. Arm strong, '3 J. J. Marsh. (Ky.) 260, 20 Am. Dec. 137. That the defendant has, or pretends to have, or that he claims, an interest to con test the title of the plaintiff in the subject matter of the proposed testimony ; Cooper, Pl. 56 ; Story, Eq. Pl. §' 302 ; and some ground of necessity for perpetuating the ev idence ; Story, Eq. Pl. § 303 ; Mitt. Eq. PI. 52, 148, n.
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. 312; Cooper, Eq. PI. 56; and should
pray leave to examine the witnesses touch ing the matter stated, to the end that their testimony, may be preserved and perpetuated ; Mitf. Eq. Pl. 52. The bill is filed and serv ice made in the usual way ; Green v. Com pagnia Generale Italian Di Navigation, 82 Fed. 490.
A bill is denaurrable if it contains a prayer for relief ; Hickman v. Hickman, 1 Del. Ch. 133 ; 2 Ves. 497.
It must appear that the relief is absolutely necessary to prevent 'a failure of justice ; Crawford v. McAdams, 63 N. C. 67 ; if no reason exists for bringing the action in aid of which such a bill is filed, the bill will be dismissed ; In re Ketchum, 60 How. Pr. (N. Y.) 154. Where a party sought to perpetuate testimony of his legitimacy, the bill was dis missed because the legitimacy act gave him a remedy ;, [1903] 2 Ch. 378. So as to a threat ened slander suit where the answer releas ed all claims against the plaintiff for slan der; Hanford v. Ewen, 79 Ill. App. 327. The testimony of an' injured man not ex pected to live may be taken for the benefit of his family ; Ohio Copper Min. Co. v. Hutchings, 172 Fed. 201, 96 C. C. A. 653 (under a Utah statute).
Where one is threatened by patent suits which are not brought, he may file a bill un der R. S. § 866, to perpetuate testimony that the patent is invalid; Westinghouse Mach. Co. v. Battery Co., 170 Fed. 430, 95 C. C. A. 600, 25 L. R. A. (N. 51 673, with note; and it is held that he need not show that it is necessary to take the depositions to prevent a failure of justice ; id.