If the depositions taken under the commission to examine witnesses abroad, are required to be used at law, the plaintiff applies, by motion upon notice, (supported by an affidavit of their being necessary,) for an order that such depositions may be published, in order that the plaintiff may use the same on his behalf upon the trial of the

said action.

A defendant to a mere bill of discovery in aid of an action at law, will not be ordered to produce upon the trial of the action, and upon any proceeding incident thereto, documents which he admits by his answer to be in his possession.(1) The documents are read at law with the answer and as forming part of it.(1)

On a bill for discovery and for a commission to examine foreign witnesses in aid of an action at law, a motion that the plaintiff might communicate to the defendant the interrogatories exhibited by him was refused.(2)

Although the jurisdiction of this court is not taken away by the act,(3) yet commissions for the examination of witnesses in aid of actions at law have become very rare since the passing of 1 W. 4, c. 22, by which act courts of law are empowered, by writ or commission, to examine *witnesses. The act also empowers the Court [ *506 ] to compel the attendance of witnesses, or the production of documents, to take the examination of witnesses upon oath, and to remove prisoners by habeas corpus.

(1) Brown v. Thornton, 1 M. & C. 243. (2) Butler v. Bulkeley, 2 Swanst. 373. (3) Grinnell v. Cubbold,a 4 Sim. 546.

Eng. Chan. Reps. vi. 249.

40*

CHAPTER IX.

TO EXAMINE WITNESSES DE BENE ESSE.

Under what circumstances allowed, 506. How order for obtained, 507. Terms of order, 508. How depositions taken de bene esse are published, 509.

WHEN a plaintiff's witness is of the age of seventy,[a] or the only witness to a particular fact,(1) in a dangerous state of health,[b] or about to go abroad, in any of which cases the plaintiff is liable to lose his testimony, he is entitled to an order to examine him de bene esse,(2) and if the witness resides in the country, to a commission for that purpose. A defendant is also at liberty to examine a witness de bene esse, and even before he has filed his answer.(3)[c]

Upon a question of legitimacy, depending upon a chain of distinct circumstances in the knowledge of different individuals, the Lord Chancellor said he would have allowed an examination de bene esse, as the death of one witness might destroy the chain of evidence.(2) examination de bene esse was refused to a prisoner charged with a capital felony, the Court declining to

(1) Hankin v. Middleditch, 2 Bro. C. C. 640. (2) Shelley v. -———— 13 Ves. 56.

An

(3) Brown v. Child, 3 Sim. 457.

[a] An ex parte order for the examination, de bene esse, of a witness "in her seventieth year," and very weak and infirm, and, foom her advanced years, not likely to live long, was discharged for irregularity, on the ground that she did not come within the rule, not being seventy years of age, and not being "in a dangerous state of health." M'Kenna v. Everitt, 2 Beav. 188; S. C. 3 Lond. Jurist, 1166.

[b] It has been doubted, at law, in England, whether pregnancy or imminent delivery, be a cause for the examination of a witness de bene esse; but it seems, that at all events, if it be a sufficient cause, the affidavits of competent persons should be produced, show. ing that the delivery would probably happen about the time of trial. Abraham v. Newton, 8 Bing. 274, (21 Eng. Com. Law Rep. 300;) S. C. 1 Moo. & Sc. 384; S. C. 1 Dowl. Pr. Cas. 266.

The Supreme Court of New York have, however, recently held, that evidence that a woman is in an advanced state of pregnancy, so that it would not be safe for her to attend the trial, is sufficient evidence of sickness, to justify the reading of her deposition taken de bene esse. Clark v. Dibble, 16 Wend. 601.

See, also, Lingan v. Henderson, 1 Bland, 238.

[c] So, also, the Court will order a witness to be examined de bene esse, on the application of the plaintiff, before an answer put in, provided the necessity for taking his deposition be satisfactorily shown by affidavit. Fort v. Ragusin, 2 Johns. Ch. Rep. 146.

extend the rule *established.(1) The Court can make an order to examine a defendant de bene esse saving just exceptions, though they cannot make such an order to examine a plaintiff. (2) A witness was ordered to be examined de bene esse where the thing examined into, lay only in the knowledge of the witness, and was a matter of great importance, though the witness was not proved to be old or infirm.(3) Where the witnesses were under seventy years of age the application was refused, the affidavit of the agent only stating that he was informed by the witness that he could prove the particular fact, and that he believed the witness was the only person who could prove it, and not stating the ground of his belief.(4)[a] An order was made after verdict upon an issue to examine a witness de bene esse, above seventy years, suggesting an intention of moving for a new trial.(5) Witnesses having been examined de bene esse with a view to a trial at law, the examination of another witness is not permitted without strong circumstances; as, where a second ejectment was brought after a verdict for the defendant, the examination of a witness produced at the trial (who had not been examined under a bill to perpetuate testimony) was permitted, but no other witnesses were allowed to be examined.(6)

If a witness is above seventy years of age, upon an affidavit of that fact, and of his evidence being material, it is a petition or motion as of course, for an order to examine him de bene esse.(7) If the witness reside beyond twenty miles from London, the plaintiff is entitled to a commission, whether the witness is under seventy or not. If there is *only one witness to a particular fact, [ *508 ] or a witness is in a dangerous state of health, it appears the order may be made as of course.(8)[a]

[a] An application for the examination of a witness de bene esse, upon the ground that he is the sole witness to a particular fact, will not be granted upon the affidavit of the solicitor, stating that, to the best of his knowledge, information and belief, the witness is the only person who can depose to the facts. Hope v. Hopc, 4 Lond. Jurist, 1124. Whether the form of the order be for the general examination of the witness, "saving all just exceptions," or whether it will be confined to the particular facts? Quære. Ibid. [a] The question as to whether orders for the examination of witnesses de bene esse, are

In all other cases a notice of motion is served.[6] In Bellamy v. Jones, 8 Ves. 31, a notice of motion was required to be given, but the reason appears to have been because the witness had not sworn that the party was in a dangerous state, but left the Court to draw the inference. In Frere v. Green, 19 Ves. 319, it is laid down as a rule of the Court that the examination of witnesses de bene esse is not permitted before the appearance of the defendant, unless the defendant having been served with a subpoena is in contempt for want of appearance; but in Pritchard v. Gee, 5 Madd. 364, it is said an order of course may be obtained before appearance for examination of a witness above seventy years of age, and that notwithstanning a reference of the bill for impertinence.

grantable ex parte or should be upon notice, has been recently considered in England, and the principle seems now to be established, that in cases where the evidence might be lost before notice could be given, such as the case of a witness being dangerously ill, or under government orders to go abroad, in which case he would have to leave the country when the packet sailed, the order may be ex parte, otherwise not. And accord. ingly, it was held in a late case, by Lord Langdale, M. R., that it is an order of course, to examine a soldier going abroad under the orders of the government. M'Kenna v. Everitt, 2 Beav. 188; S. C. 3 Lond. Jurist, 1166. But in a still later case, before the same judge, it was held, that an order for the examination of a witness de bene esse, upon the ground that he is the sole witness to a particular fact, will not be made ex parte; and this, although the statement in the text, and the practice, as laid down in 2 Dan. Ch. Prac. 547, were referred to in support of the contrary doctrine. Hope v. Hope, 4 Lond. Jurist, 1124. And in arriving at this result, Lord Langdale remarks;-" I find that in the case of Hankin v. Middleditch, 2 Bro. C. C. 640, Lord Thurlow made an order ex parte, upon an affidavit that the witness was the only witness to a fact material to the cause, though no age was sworn to. And the cases of Shirley v. Ferrers, 3 P. W. 77; Jenkins v. Tucker, and Brydges v. Hatch, in Chan. Jan. 19, 1798, were cited to him. For several years past, it has been the practice of the Court to pass these orders, as of course; and so the practice was understood by Sir John Leach, in the case of Tomkins v. Harrison, 6 Madd. 315, and by me in M'Kenna v. Everitt, 2 Beav. 188; S. C. 3 Lond. Jurist, 1166; but notwithstanding the practice, the case of Hankin v. Middleditch is the only instance, where the order was made ex parte, to examine a witness de bene esse, on the ground of being the only witness to the facts. In Shirley v. Ferrers, supra, and Pearson v. Ward, 1 Cox, 177, and several other cases which have been cited, the order was made upon notice. No case has been found, in which the question, whether such order should have been made upon an ex parte motion, had been raised or argued. The question then is, whether this order should have been made ex parte. It appears from all the cases, with the exception of Hankin v. Middleditch, that where this order has been made ex parte, such case has come within that class of cases, which require that the examination should be taken suddenly, for fear of the loss of the evidence. I think, . that, notwithstanding the practice which has prevailed to the contrary, the order, in cases like the present, should be made upon notice."

And in New York, on the petition of the plaintiff, verified by the affidavit of his solicitor, he being absent, that R. S. was a material witness for him in the cause, and that he was about to depart, in a few days, for Alabama, and to reside there permanently, an ex parte motion to examine the witness de bene esse, was granted, inasmuch as notice could not well be given, and it being unnecessary, inasmuch as, by the then practice in New York, a copy of the interrogatories must be previously served on the defendant. Rockwell v. Folsom, 4 Johns. Ch. Rep. 115.

[b] The place of residence and description of the witnesses, whom it is sought to have examined de bene esse, must be given in the affidavit. O'Farrell v. O'Farrell, 2 Moll. 364, (12 Eng. Ch. Rep. 501.)

The practice appears to differ from the dictum in Frere v. Green, inasmuch as immediately a bill is filed, and before an appearance, a petition of course supported by the affidavit of the witness being of the age of seventy years will be answered, and an order drawn up to examine him and for a commission if necessary.[c]

The order to examine de bene esse, states the names of the witnesses to be examined, and directs the usual four days' notice to be given to the defendant's clerk in court that he may, if he pleases, join in the commission. If the defendants have not appeared, the order is drawn up, "that notice of this 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 before the execution of the said commission."[d] *The order [ *509 ] may also give the examiner liberty to attend the witness at his residence in order to examine him.

If the defendants appear before the commission is made out, they are entitled to join in the commission for the purpose of cross-examination; but if the writ is sealed, there seems little benefit likely to result from the ten days' notice of executing, as at that time they have no opportunity of joining in the commission, except by a special application to the Court.

If the witnesses reside in London they are examined before the examiner; if in the country, under a commission, which is executed in the usual manner, and the depositions in the first case are left with the examiner; in the other, are returned to the plaintiff's clerk in court, where they remain.

If the witnesses survive, and are in the kingdom at the time of the examination in chief in the cause, they are re-examined, and the depositions de bene esse are never published.[a] On an affidavit of a surgeon, that a witness

[c] Dew v. Clarke, 1 S. & S. 108; 2 Dan. Ch. Prac. 545.

[d] 2 Dan. Chan. Prac. 548.

[a] As the examination of witnesses de bene esse, is only a provisional measure, to guard against the loss of important evidence, before the cause is in a state in which a regular examination can take place, it is the duty of the party examining, to take the earliest opportunity to examine, in the ordinary course, and if he is guilty of any laches in so doing, the benefit of the examination de bene esse will be forfeited. 2 Dan. Ch. Prac.

549.

This is, in analogy to the practice at law, by which, depositions taken de bene esse cannot be read at the trial, unless it be made to appear that the witness is beyond the