6

small in value, whether it be absolute or contingent, or however remote in enjoyment, is sufficient.5 Persons having mere expectancies, having entered into any contract with respect to them, may maintain a bill to perpetuate the evidence. Any person having an interest in the remainder or reversion of an estate for life may file such a bill." The defendant in a bill to perpetuate testimony must be or claim to be interested.8 Some ground of necessity for perpetuating the testimony must. also be shown, as that the party is in danger of losing his witnesses by sickness, age, or death, or by departure from the state. It will not lie, however, where the necessity of the witness' going abroad is of the complainant's own creation. A bill of this nature must be brought before the matter can be judicially investigated. Thus, it does not lie by a devisee against a purchaser without notice of the will, until after the will is established, where there is no impediment to an immediate investigation at law, or by a tenant in tail out of possession until he has recovered possession by ejectment, where there is no impediment to an investigation at law. A deed being lost or in the hands of a defendant is not such an impediment to a trial at law as to support the bill. The bill does not lie before trial, if there is no impediment to an action at law, and no fear of

52 Barbour, Ch. Pr. 137; Allan v. Allan, 15 Ves. 136.

2 Barbour, Ch. Pr. 137.

72 Barbour, Ch. Pr. 137; Cooper, Eq. Pl. 53; Sackvill v. Ayleworth, 1 Vern. 105. The court will not protect every interest by perpetuating evidence, as, for instance, if it be such as may be immediately barred by the person against whom the bill is brought. 2 Barbour, Ch. Pr. 137; Dursley v. Berkeley, 6 Ves. 261. The bill will not lie for trivial things, as rights of common, or water courses, or at least not until after a recovery at law. 2 Barbour, Ch. Pr. 137; Sackvill v. Ayleworth, 1 Vern. 105.

8 Story, Eq. Pl. § 302; 2 Barbour, Ch. Pr. 138; Teale v. Teale, 1 Sim. & S. 385; Dursley v. Berkeley, 6 Ves. 260; Jerome v. Jerome, 5 Conn. 352.

Story, Eq. Pl. § 303; 2 Barbour, Ch. Pr. 138; North v. Gray, 1 Dickens, 14; Cox v. Colley, 1 Dickens, 55; East India Co. v. Naish, Bunb. 320; Dorset v. Girdler, Finch,. Prec. Ch. 531.

the death of a witness before trial.10 The bill must show either that the facts to which the testimony of the witnesses proposed to be examined relates cannot be immediately investigated in a court of law, or, if they can be so investigated, that the sole right of action belongs exclusively to the other party, or that the other party has interposed some impediment, as an injunetion, to an immediate trial of the right in a court of law.11 If an important fact is in the knowledge of only one or two witnesses, a bill of this nature lies.12 Where a person's right of fishery or of common is actually disturbed, so that an action may be maintained, a bill of this nature does not lie until after the trial.13 A person in possession who has been threatened, but not so disturbed as to enable him to support an action, may maintain the bill before action commenced.14 It is said to be not necessary for the complainant to be in possession in order to bring such bill.15 A bill lies by a devisee where lands are devised by will, and there is no occasion or opportunity to establish the will at law.16 It will also lie before action brought, if the defendant prevents the bringing of the action, and before a trial at law, where the defendant has obtained an injunction against the plaintiff's proceeding in ejectment, and the plaintiff has a verdict for another part of the same estate, upon the same title.1 A person may bring such a bill in many cases where he cannot bring a bill for relief without waiving the penalty or offering to do equity.18

10 2 Barbour, Ch. Pr. 138, 139.

11 Story, Eq. Pl. § 303; Mitford, Eq. Pl. 52; 2 Barbour, Ch. Pr. 138; Angell v. Angell, 1 Sim. & S. 83; Pettebone v. Everhart, 4 Kulp (Pa.) 353; Booker v. Booker, 20 Ga. 777; New York & Baltimore Coffee Pol ishing Co. v. New York Coffee Polishing Co., 9 Fed. 578.

12 2 Barbour, Ch. Pr. 139; Mitford, Eq. Pl. 150; Welford, Eq. Pl. 142: Moodalay v. Morton, 1 Brown Ch. 469.

13 2 Barbour, Ch. Pr. 139.

14 2 Barbour, Ch. Pr. 139; Dorset v. Girder, Finch, Prec. Ch. 531.

15 Booker v. Booker, 20 Ga. 777.

16 2 Barbour, Ch. Pr. 139.

17 2 Barbour, Ch. Pr. 139; Cox v. Colley, 1 Dickens, 55.

18 Suffolk v. Green, 1 Atk. 450.

§ 796. Such bills not favored by the courts.

Such bills seem to be received with caution, if not regarded with jealousy, by the courts,19 though an eminent authority has said that, as the object of the jurisdiction is to assist other courts, and, by preserving evidence, to prevent future litigation, there are few cases in which a court will decline exercising it, and therefore a demurrer thereto will seldom lie.20

§ 797. Frame of bill.

The matter touching which the complainant is desirous to acquire evidence should be particularly stated in the bill, so that the interrogatories on both sides may be directed to the true merits of the controversy. Thus, where the bill seeks to perpetuate the testimony of witnesses to a will, it is proper in the bill to set forth the whole will in haec verba.21 It is necessary to state on the face of the bill all the material facts which are necessary to maintain the jurisdiction.22 It must show the matter touching which the complainant is desirous to give evidence, that the complainant has an interest in the subject, and the nature of that interest, and the interest of the defendant to contest the complainant's title.23 The title of the complainant ought to be plainly, yet succinctly, stated, and that with all necessary and convenient certainty as to the material facts,

19 2 Barbour, Ch. Pr. 139; Cann v. Cann, 1 P. Wms. 568; Booker v. Booker, 20 Ga. 777.

20 Mitford, Eq. Pl. 149.

21 2 Barbour, Ch. Pr. 140; Story, Eq. Pl. § 305; Cressett v. Mytton, 3 Brown Ch. 481; Gell v. Hayward, 1 Vern. 312; Pettebone v. Lehigh Valley Coal Co., 4 Kulp (Pa.) 349.

22 Story, Eq. Pl. § 300; Mason v. Goodburne, Finch, 391; Knight v. Knight, 4 Madd. 1; Booker v. Booker, 20 Ga. 777.

23 2 Barbour, Ch. Pr. 140; Jerome v. Jerome, 5 Conn. 352; Story, Eq. Pl. 301; Pettebone v. Lehigh Valley Coal Co., 4 Kulp (Pa.) 349. Where the bill alleges that certain notes in respondent's possession have been forged, and prays for an order to perpetuate the testimony of the forger (in prison, and about to be sentenced), it is not necessary that it should set forth the notes in haec verba. Graham v. Bank, 3 Lanc. Law Rev. 68.

and as to the time, place, manner, and other incidents, 24 but it is amendable if the facts are not stated with sufficient clearness.25 Some ground of necessity for perpetuating the evidence must be shown. Without such allegations, the bill will be demurrable. 26 The bill need not offer to pay what is due on a usurious contract, or to waive penalties.27 The bill should state the names of the witnesses whose testimony is desired. 28 It should pray leave to examine witnesses touching the matters stated, to the end that their testimony may be preserved and perpetuated. It should also pray proper process of subpoena, but it should not pray that the defendant may abide such order and decree as the court should think proper to make, for that will turn it into a bill for relief, which is inconsistent with the nature of a bill to perpetuate testimony, and render the bill demurrable and liable to be dismissed for this cause.29 should be taken not to mix up in the bill other matters which will require very different decretal orders as to the publication of the testimony; otherwise it will be demurrable.30 Thus, a prayer for relief will render a bill multifarious.31 The court

Care

24 2 Barbour, Ch. Pr. 140; Jerome v. Jerome, 5 Conn. 352; Smith v. Turner, 39 N. C. 433, 47 Am. Dec. 353.

25 Booker v. Booker, 20 Ga. 777.

26 2 Barbour, Ch. Pr. 141; Story, Eq. Pl. § 303; Cooper, Eq. Pl. 53; Angell v. Angell, 1 Sim. & S. 83; Dursley v. Berkeley, 6 Ves. 260; Dew v. Clarke, 1 Sim. & S. 108; Parry v. Rogers, 1 Vern. 441; Booker v. Booker, 20 Ga. 777.

27 2 Barbour, Ch. Pr. 141; Suffolk v. Green, 1 Atk. 450.

28 Smith v. Turner, 39 N. C. 433, 47 Am. Dec. 353. Contra, Pettebone v. Lehigh Valley Coal Co., 4 Kulp (Pa.) 349.

29 Story, Eq. Pl. § 306; 2 Barbour, Ch. Pr. 142; Cooper, Eq. Pl. 52; Jerome v. Jerome, 5 Conn. 352; Rose v. Gannel, 3 Atk. 439; Vaughan v. Fitzgerald, 1 Schoales & L. 316.

80 2 Barbour, Ch. Pr. 142; Story, Eq. Pl. § 306; Dew v. Clarke, 1 Sim. & S. 108.

31 Aetna Life Ins. Co. v. Smith, 73 Fed. 318; Jerome v. Jerome, 5 Conn. 352; Story, Eq. Pl. § 306; Dalton v. Thomson, 1 Dickens, 97. A bill by an insurance company to cancel a policy of insurance on the ground of fraud, and asking for the perpetuation of testimony, is multifarious. Aetna Life Ins. Co. v. Smith, 73 Fed. 318. See, to the contrary, Commercial Mut. Ins. Co. v. McLoon. 14 Allen (Mass.) 351.

will frequently allow the complainant to amend his bill by striking out the relief, even after the testimony has been taken under it.32 When the bill is framed on the ground that the testimony of a witness may be lost by his death or departure from the state before the case can be investigated in a court of law, it is proper to annex an affidavit of the circumstances by which the evidence intended to be perpetuated is in danger of being lost. This practice is adopted in other cases of bills which have a tendency to change the jurisdiction of the subjectmatter from a court of law to a court of equity.33 When the bill is sworn to, however, it will be sufficient to state the circumstances in the bill, and no other affidavit will be necessary.334

§ 798. Form of bill to perpetuate testimony.

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

Humbly complaining, shows unto your honors your orator, G. H., of, etc., brother of the half blood and devisee named in the last will and testament of T. R., of, etc., deceased; that the said T. R. was in his lifetime, and at the time of his death, seised or entitled, to him and his heirs, of or to divers freehold estates situate in the several places here

A bill is not multifarious in asking to have testimony in regard to a title perpetuated, and a cloud upon said title removed. Cleland v. Casgrain, 92 Mich. 139, 52 N. W. 460. The court will entertain a bill for discovery, and to perpetuate evidence in aid of the defense to an action at law on a contract. Jerome v. Jerome, 5 Conn. 352. A bill setting forth all the facts necessary to entitle a party to an order to perpetuate the testimony of a witness, but praying that the testimony may be taken de bene esse, does not change its distinctive character as a bill to perpetuate testimony. Booker v. Booker, 20 Ga. 777. 82 Vaughan v. Fitzgerald, 1 Schoales & L. 316. See, however, Ellice v. Roupell, 32 Beav. 308, holding that a bill to perpetuate testimony cannot, by amendment, be converted into a bill of discovery.

38 Story, Eq. Pl. § 304; Mitford, Eq. Pl. 52, 53; 2 Barbour, Ch. Pr. 141; Suffolk v. Green, 1 Atk. 450; Philips v. Carew, 1 P. Wms. 117; Angell v. Angell. 1 Sim. & S. 83; Shirley v. Ferrers, 3 P. Wms. 77.

84 2 Barbour, Ch. Pr. 141. It is said, however, that a bill to perpetuate testimony need not be verified by the complainant's affidavit. Hickman v. Hickman, 1 Del. Ch. 133. See, also, Jerome v. Jerome, 5 Conn. 356. For extracts from bill held to be good on demurrer, see New York & Baltimore Coffee Polishing Co. v. New York Coffee PolishIng Co., 9 Fed. 579.