testimony, and required it to be secret and by depositions, is rendered obsolete in most jurisdictions.119

§ 658. Examinations de bene esse.

The examination of a witness de bene esse takes place where there is danger of losing the testimony of an important witness from death by reason of old age (as where the witness is seventy years old and upwards), or dangerous illness, or where he is the only witness to an important fact. In such cases, the court, to prevent the party from being deprived of the benefit of his evidence, will permit his depositions to be taken before the cause is at issue, in order that, if the witness die, or be not forthcoming to be examined after issue joined, the deposition so taken may be used at the hearing.120 Such an examina

119 3 Greenleaf, Ev. § 259. The practice in the federal courts relative to taking testimony is regulated by rules prescribed by the supreme court of the United States, which is authorized by statute to prescribe rules of proof in equity cases. Rev. St. U. S. §§ 862, 863. See Stevens v. Missouri, K. & T. Ry. Co., 104 Fed. 935. United States Equity Rules 67-71 provide for the mode of taking testimony in equity causes in the federal courts. The court may, in its discretion, permit the whole or any specific part of the evidence to be adduced orally in open court on final hearing. United States Equity Rule 67; Sickles v. Gloucester Co., 3 Wall. Jr. 186, Fed. Cas. No. 12,840; Blease v. Garlington, 92 U. S. 1; In re Clark, 9 Blatchf. 372, Fed. Cas. No. 2,801; Mears v. Lockhart, 94 Fed. 274. By statute in Illinois it is provided that, on the trial of every suit in chancery, oral testimony shall be taken, when desired by either party. Rev. St. Ill. c. 51, § 38. For rules relative to the taking of depositions in chancery cases in Illinois, see Rev. St. Ill. c. 51. Owing to the fact that the manner of taking evidence in the various jurisdictions where equity practice obtains differs, and is governed largely by statute, no good end will be subserved by a consideration of the local practice in any one jurisdiction, and the scope of this work renders it impracticable to treat of the local practice on this subject obtaining in all such jurisdictions.

120 1 Barbour, Ch. Pr. 270; Rowe v., 13 Ves. 261; Bellamy v. Jones, 8 Ves. 31; Shirley v. Ferrers, 3 P. Wms. 77. Instances where such orders have been granted will appear from the following cases: Bown v. Child, 3 Sim. 457; Fitzhugh v. Lee, 1 Amb. 65; Jepson v. Greenaway, 2 Fowler, Exch. Pr. 122; Botts v. Verelst, 2 Dickens, 454; Byrne v. Byrne, 2 Moll. 440; East India Co. v. Naish, Bunb. 320; Shelley v. 13 Ves. 56; Wilson v. Wilson, 1 Newland, Ch. Pr. 287;

tion is incidental to every suit in chancery. It may even be incidental to a suit to perpetuate testimony, where there is danger that the evidence of a witness whose testimony is to be perpetuated will be lost before the suit for perpetuating will be ripe for a regular examination.121 Wherever the testimony of a witness is required to be used, either in support of, or in defense to, an action at law, a bill must first be filed with the proper affidavit annexed to it, praying specifically that the witness may be examined de bene esse.122

The court will grant an order for the examination of witnesses de bene esse, not only in the cases above enumerated, but wherever the justice of the case appears to require it.123 The rule that the examination of a witness de bene esse will be permitted where the person proposed to be examined is the only witness will not be extended to cases where there is more than one witness to the same fact, unless upon the ground of the age or infirmity of the witness.124 The court will grant an order allowing the complainant to examine a witness de bene esse before an answer has been put in, provided the necessity for taking his deposition is satisfactorily shown by affidavit.125 Where the defendant has not appeared, he must have notice of the examination.126 In order to examine a witness de bene esse, the defendant must have put in his answer.127 Under the English practice, application for leave to examine a witDew v. Clark, 1 Sim. & S. 108; Coveny v. Athill, 1 Dickens, 355; Prichard v. Gee, 5 Madd. 364.

121 1 Barbour, Ch. Pr. 270; Frere v. Green, 19 Ves. 319.

122 1 Barbour, Ch. Pr. 270; Philips v. Carew, 1 P. Wms. 117; Andrews v. Palmer, 1 Ves. & B. 21; Atkins v. Palmer, 5 Madd. 19. 123 1 Barbour, Ch. Pr. 271; Tomkins v. Harrison, 6 Madd. 315. 124 1 Barbour, Ch. Pr. 271; Anonymous, 19 Ves. 321. But see Cholmondely v. Orford, 4 Brown Ch. 157, where two witnesses, being the only persons who knew the material facts, were examined.

125 1 Barbour, Ch. Pr. 271; Fort v. Ragusin, 2 Johns. Ch. (N. Y.) 146, citing Harrison v. Gardner, 2 Madd. 202; Bagnold v. Green, 1 Dickens, 2, Cary, 68; Shelley v. 13 Ves. 56.

126 1 Barbour, Ch. Pr. 272; Tomkins v. Harrison, 6 Madd. 315.

127 1 Barbour, Ch. Pr. 272; Williams v. Williams, 1 Dickens, 92; Woodmas v. Warner, 2 Fowler, Exch. Pr. 131.

ness de bene esse was required to be supported by an affidavit of the facts showing the ground of the application.128 The place of residence and description of the witness sought to be examined must be stated.129 By the English practice, an order for leave to examine a witness over seventy years of age, dangerously ill, or the only witness to a material fact, might be obtained without notice, and even before answer or appearance, provided the defendant had been served with subpoena.130 Where the application is made on other grounds, notice must be given to the opposite party,131 unless the defendant is in contempt for non appearance.132 Witnesses may be examined de bene esse through an examiner, or, in a proper case for it, by a commissioner, under a commission issued in the same manner as a commission to take the examination of a witness in chief.133 Their examination is taken in the same manner as the examination of a witness in chief. All the formalities required in the examination of witnesses in chief must be observed, so far as the circumstances of the case will permit.134 Notice of the examination must be given to the opposite party, in order that he may have opportunity for cross-examination.135 Under the English practice, a party examining witnesses de bene esse was bound to take the earliest opportunity to examine them afterwards in the ordinary manner, and, if guilty of any laches in so doing, would lose the benefit of the examination de bene esse.136 The statutes of most states authorize an examination

1281 Barbour, Ch. Pr. 273; Pearson v. Ward, 1 Cox, 177; Rowe v. 13 Ves. 261; Hankin v. Middleditch, 2 Brown Ch. 641.

129 O'Farrell v. O'Farrell, 2 Moll. 364; Fort v. Ragusin, 2 Johns. Ch. (N. Y.) 146.

180 1 Barbour, Ch. Pr. 272.

1311 Barbour, Ch. Pr. 272; Bellamy v. Jones, 8 Ves. 31.

182 Frere v. Green, 19 Ves. 319; 1 Barbour, Ch. Pr. 272.

183 1 Barbour, Ch. Pr. 274; Hinde, Pr. 313; Lingan v. Henderson, 1 Bland (Md.) 238.

134 1 Barbour, Ch. Pr. 275.

185 1 Barbour, Ch. Pr. 275; Loveden v. Milford, 4 Brown Ch. 540. 186 1 Barbour, Ch. Pr. 275, 276; Cann v. Cann, 1 P. Wms. 567; Gasson v. Wordsworth, 2 Ves. Sr. 325, 336; Anonymous, 2 Ves. Sr. 497;

in a more summary manner, before certain officers, out of court; but the statutory methods are frequently held to have not abolished the ancient mode of proceeding to take the examination of witnesses de bene esse.137

It is said that a court of chancery, independently of any statute, always possessed the power to issue a commission for the examination of any witness, either in or out of the jurisdiction, and to direct the manner in which the same should be returned.138

§ 660. Letters rogatory.

139

Where the government of a foreign country, in which the witness proposed to be examined resides, refuses to allow the commissioners to administer oaths to such witnesses, or to permit the commission to be executed unless it is done by some magistrate or judicial officer there, according to the laws of that country, letters rogatory must be issued." These are directed to any judge or tribunal having jurisdiction of civil cases in a foreign country, reciting the pendency of the suit, and that there are material witnesses residing in the foreign country whose testimony is essential to do justice between the parties, and then request the judge or tribunal to cause the witnesses to come before them, and answer the interrogatories an

Marsden v. Bound, 1 Vern. 331; Bradley v. Crackenthorp, 1 Dickens, 182; Andrews v. Palmer, 1 Ves. & B. 21; Jones v. Jones, 1 Cox, 184. 137 1 Barbour, Ch. Pr. 270.

138 Brown v. Southworth, 9 Paige (N. Y.) 351; Una v. Dodd, 38 N. J. Eq. 460; 1 Barbour, Ch. Pr. 293, 308; Hinde, Pr. 303; Mendizabel v. Machado, 2 Sim. & S. 483; Jackson v. Strong, 13 Price, 309; Bowden v. Hodge, 2 Swanst. 258. For the procedure on commissions to examine witnesses within the state, and also without the state, see 1 Barbour, Ch. Pr. 293, 308; Barnesly v. Powel, 2 Dickens, 793; Campbell v. Scougal, 19 Ves. 554; Wake v. Franklin, 1 Sim. & S. 95; Smales v. Chayter, 1 Dickens, 99; Jones v. Donithorne, 1 Dickens, 352; 1 Hoffman, Ch. Pr. 474-482.

139 1 Barbour, Ch. Pr. 305. See, also, Foster. Fed. Pr. (3d Ed.) § 290.

nexed to the letters rogatory, and to cause their written depositions to be taken and returned with such letters.140 A special application must be made to the court to obtain an order for letters rogatory.141 "It is to be observed that there is a very

broad distinction between the execution of a commission and the procuring of testimony by the instrumentality of letters rogatory, or letters requisatory,' as they are sometimes called. In the former case, the rules of procedure are established by the court issuing the commission, and are entirely under its control; in the latter, the methods of procedure must, from the nature of the case, be altogether under the control of the foreign tribunal which is appealed to for assistance in the administration of justice. We cannot execute our own laws in a foreign country, nor can we prescribe conditions for the performance of a request which is based entirely upon the comity of nations, and which, if granted, is altogether ex gratia. 'We therefore request you that, in furtherance of justice, you will, by the proper and usual process of your court, cause such witnesses to appear before you, and there to answer,' etc. This is the formula in which the letters are couched. We cannot dictate the methods to be pursued by the court whose assistance we invoke. The rules and practice of the foreign court must be the law of procedure in such cases. Letters rogatory were unknown to the common law. They came to us from the civil law, though the admiralty courts and the civilians seem to agree. that, in all that concerns the forms of procedure in such cases, the judge ought to observe the laws of his own country. We may therefore adopt in the present case the language of Judge Washington: 'Where the business is taken out of the hands of persons appointed by this court, the ends of justice seem to require a departure, in some degree, from the ordinary rules of evidence. To what extent this departure would go has never yet been decided in this court, and it is not necessary at present

140 1 Barbour, Ch. Pr. 305; Nelson v. United States, Pet. C. C. 236, Fed. Cas. No. 10,116.

1411 Barbour, Ch. Pr. 305; 1 Hoffman, Ch. Pr. 482.