It is said that, unlike bills of interpleader, an affidavit denying collusion is unnecessary. 96

purpose of a bill of interpleader. Under such circumstances, the complainant has a personal interest in the result of the suit, directly antagonistic to that of respondents." Crass v. Memphis & C. R. Co., 96 Ala. 447, 11 So. 480. Wherein bills in the nature of bills of interpleader and bills of interpleader differ, and what are the requisites of the former bills, do not clearly appear. Nofsinger v. Reynolds, 52 Ind. 225.

96 Koppinger v. O'Donnell, 16 R. I. 417, 16 Atl. 714; Vyvyan v. Vyvyan, 30 Beav. 65.

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The object of a bill of certiorari is to remove a suit in equity, pending in some inferior court, into a court of chancery, or into some other proper superior court of equity, if any such there be, on account of some alleged incompetency of the inferior court, or some injustice in its proceedings. This species of bill, having this sole object, merely prays the writ of certiorari. It states the proceedings in the inferior court, the cause of its incompetency, by suggesting that the cause is out of its jurisdiction, or that the witnesses or the defendants live out of the jurisdiction, or that the defendants are not able, by age or infirmity, or the distance of the place, to follow the suit there, or that, for some other cause, equal justice is not likely to be done them, and prays a writ of certiorari to certify and remove the cause and the record to the superior court. It does not pray that the defendant may answer or even appear to the bill, and consequently prays no writ of subpoena, although a writ of subpoena must be sued out and served. When the cause is removed from the inferior court, the bill exhibited in that court is considered as an original bill in the court of chancery, or other superior court, and is proceeded upon as such. The proceedings, however, on it, are peculiar, and belong rather to the practice than the pleadings of a court of equity.1 Bills of

1 Story, Eq. Pl. § 298; Mitford, Eq. Pl. 51; Cooper, E. Pl. 50, 51; 1 Montagu, Eq. Pl. 244; Barton, Suit in Eq. 51, 52; Portingdon v. Tarbock, 1 Vern. 177.

this nature are rarely, if ever, used in the United States, and no reported cases indicate that they have been resorted to.2

§ 794. Form of bill of certiorari.

[Title of court, and address to the court.]

Humbly complaining, showeth, etc., your orator, A. B., etc., that whereas, etc. [setting forth the cause prosecuted in the lord mayor's court]. All which said premises your orator hopes he shall make fully appear by several witnesses, if need be, which he could not produce within the said city of L. before the said lord mayor and his brethren, the aldermen of the city of L.; your orator showing unto your lordship that one E. F., a material witness for your said orator concerning the said premises at the time of the cause, etc., then lived and resided, and still liveth and resideth, at W., without the jurisdiction of the said lord mayor and his brethren, the aldermen of the city of L., whereby your orator had no remedy to compel the said E. F. to be examined or to give his testimony in the said cause in the city of L. concerning the premises. In tender consideration whereof, ard forasmuch as, for want of jurisdiction in the said lord mayor and his brethren, the alder men of the said city of L., over your orator's witnesses, your orator is remediless there, and it being agreeable with the rules and practice of this honorable court, upon such necessities and defects of jurisdiction in inferior courts, for this high and honorable court to remove the records and proceedings thereof into this honorable court, and to proceed in this court upon the same, and all other matters and things incident thereto, or whereupon your orator seeks relief:

May it please your lordship, therefore, not only to grant unto your orator a writ of certiorari to be directed to the said lord mayor of the city of L. and his brethren, the aldermen of the said city, thereby commanding them, upon the receipt of the said writ, to certify and remove the records of the said cause, etc., and all proceedings thereupon into this honorable court; but also to grant unto your orator his majesty's most gracious writ of subpoena, to be directed to the said C. D., etc., thereby commanding them and every of them, at a certain day, and under a certain pain therein to be limited, personally to be and appear before your lordship in the high and honorable court of chancery, then and there upon their corporal oaths fully and directly to answer all and singular the premises, and to set forth and discover whether, etc., and whether it was not declared and agreed, etc., and whether the said C. D., etc., be not indebted unto your said orator, and in what sum, and

2 Story, Eq. Pl. § 298. It is said by Mr. Foster in his work on Federal Practice, which is high authority on all questions pertaining to practice in the federal courts, that in no reported case has such a bill been filed in a federal court. Foster, Fed. Pr. § 90. See supra, § 66.

that your said orator may be righted and relieved in all and singular the premises, according to equity and good conscience. And that the said defendants may stand to, observe, and perform such order and decree therein as your lordship in your great wisdom shall think just and meet.

G. H.,

Solicitor for Complainant.s

A. B., Complaizant.

This form is taken from Van Heythuysen, Eq. Drafts. 312. Although this form contains a prayer for subpoena, and also for an answer, such practice is not in accordance with the proper practice as laid down by the authorities. Story, Eq. Pl. § 298, note. For another form of bill, see Willis, Pl. in Eq. 309 (L. L. vol. xxv.). writ of certiorari, see Hinde, Ch. Pr. 581.

For form of

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CHAPTER XLIII.

BILLS TO PERPETUATE TESTIMONY.

§ 795. In general.

A bill to perpetuate testimony is one filed in order to procure the testimony of witnesses to be taken with reference to some matter not at the time in litigation, but which is liable to become so.1 The sole object of such a bill is to assist other courts, and to preserve evidence to prevent future litigation.2 When a person interested in any property is in danger of losing the evidence of his right before it can be judicially investigated, he may file a bill against the persons who will be benefited by the loss, to examine the witnesses and perpetuate their testimony. In order to maintain such a bill, the complainant must be interested, and an expectancy, however strong, is not a sufficient interest. Thus, neither the next of kin nor heir at law of a lunatic, though that lunatic be intestate and morally and physically in the most hopeless state, can maintain a bill for the perpetuation of testimony, for the law never deems a recovery impossible during life. Any actual interest, however

1 Bouvier, Law Dict. tit. "Bill to Perpetuate Testimony"; Ellice v. Roupell, 32 Beav. 308. For history of this species of bill, see Booker v. Booker, 20 Ga. 777.

2 Story, Eq. Pl. § 300; Smith v. Turner, 39 N. C. 433, 47 Am. Dec. 353; Baxter v. Farmer, 42 N. C. 239. See Kellogg v. Warmouth, Fed. Cas. No. 7,667.

32 Barbour, Ch. Pr. 136; Graham v. Bank, 3 Lanc. Law Rev. (Pa.) 68. Story, Eq. Pl. § 301; 2 Barbour, Ch. Pr. 137; Dursley v. Berkeley, 6 Ves. 260; Sackvill v. Ayleworth, 1 Vern. 105; Smith v. Attorney General, cited in 6 Ves. 260; Hall v. Stout, 4 Del. Ch. 269; Smith v. Turner, 39 N. C. 433, 47 Am. Dec. 353. See Richter v. Jerome, 25 Fed. 679.