inafter mentioned, and divers other places, of considerable yearly value in the whole, and being seised or entitled, and being of sound and dis posing mind, memory, and understanding, he made his last will and testament in writing, bearing date, etc., which was duly executed by him in the presence of and attested by three credible persons, whose names are [here insert the names of the subscribing witnesses], and which will, with the attestation thereof, is in the words following; that is to say [stating the will verbatim]. And your orator further shows that the said T. R. afterwards, and on or about —, departed this life without revoking or altering his said will, or any part thereof, whereupon your orator, by virtue of the said will, became entitled in fee simple to all his said freehold estates, subject, as to such part thereof as aforesaid, to the payment of so much of the funeral expenses, debts, and legacies of the said T. R. as his personal estate may fall short to pay; and your orator accordingly, soon after the death of the said T. R., entered upon and took possession of all the said estates, and is now in possession and receipt of the rents and profits thereof, and in the possession and enjoyment thereof. And your orator well hoped that he and his heirs and assigns would have been permitted to enjoy the same quietly, without any interruption from any person whomsoever. But now so it is, may it please your honors, that T. H., of, etc., who claims to be cousin and heir at law of the said T. R., alleging that he is the only or eldest son of T. H. and M., his wife, both deceased [which said M. H., as is also alleged, was the only child of S. R., who, as is likewise alleged, was the only brother of the father of T. R., who left any issue], combining and confederating with divers persons unknown to your orator, pretends that the said T. R. did not make such last will and testament in writing as aforesaid, or that he was not of sound and disposing mind and memory at the making thereof, or that the same was not executed in such manner as by law is required for devising real estates; and therefore he insists that your orator hath not any right or title to the real estates late of the said T. R., or any part thereof, but that, on his death, the same descended unto him, the said T. H., as his heir at law. Whereas, your orator charges the contrary of such pretenses to be true; but nevertheless the said T. H. refuses to contest the validity of the said will during the lifetime of the subscribing witnesses thereto, and he threatens that he will hereafter dispute the validity of the said will when all the subscribing witnesses thereto are dead, whereby your orator and his heirs and assigns will be deprived of the benefit of their testimony. All which pretenses of the said confederates are contrary to equity and good conscience, and tend to injure and oppress your orator in the premises. In consideration whereof, and forasmuch as your orator cannot perpetuate the testimony of the subscribing witnesses to the said will without the assistance of a court of equity, to the end, therefore, that the said T. H. may show, if he can, why your orator should not have the testimony of the said witnesses perpetuated. and that your orator may be at lib erty to examine his witnesses with respect to the execution and attestation of the said will, and sanity of mind of the said T. R. at the making of the same, so that their testimony may be perpetuated and preserved, may it please, etc. [Pray subpoena against T. H.] E. F., Solicitor for Complainant. [Add verification.]35 § 799. Process and appearance. G. H., Complainant. The complainant compels the appearance and answer of the defendant, and the suit is proceeded with, in the usual way, by filing a replication and issuing a commission or subpoena for the examination of witnesses.36 § 800. Defense to bill to perpetuate testimony. The defendant may allege, by way of defense, any facts showing that there is no necessity of perpetuating the testimony.37 It has been said that a demurrer will seldom lie to a bill of this nature. If it clearly appears that jurisdiction does not arise upon the case made by the bill, as where specific allegations of the facts upon which the complainant claims the aid of the court are not made by the bill, or if the bill should pray relief, a demurrer will hold; but it has been held that, where the relief and discovery prayed by the bill are both demurrable, the defendant could not demur to so much of the bill as sought to perpetuate testimony.38 Whether or not a defense to a bill of this nature may be maintained by a plea is doubtful. An eminent authority lays down the rule that a plea is proper, and that, to a bill to prove a will and perpetuate testimony, the defendant may plead that he is a purchaser without notice of the will, and insist that, if the complainant has a title, he may 35 This form is taken from Curtis, Eq. Prac. 107, and Van Heythuysen, Eq. Drafts (1st Am. Ed.) 317. 36 2 Barbour, Ch. Pr. 143. See Mason v. Goodburne, Finch, 391. 37 Ellice v. Roupell, 32 Beav. 308; May v. Armstrong, 3 J. J. Marsh. (Ky.) 260. 38 2 Barbour, Ch. Pr. 142: Thorpe v. Macauley, 5 Madd. 218; Shackell v. Macaulay, 2 Sim. & S. 79; Angell v. Angell, 1 Sim. & S. 83. On the other hand, an equally immediately proceed at law.39 eminent authority has declared that no defense can be taken by way of plea to such a bill.40 An answer will lie to a bill to perpetuate testimony;41 but the defendant can only be required to admit a sufficient right on the part of the complainant to examine such witnesses as he may think fit on the various matters and issues stated in the bill.42 The defendant cannot, by making his answer a cross bill, compel the complainant to enter into an investigation as to who has the paramount right.*3 § 801. Proceedings on bill. 44 A bill to perpetuate testimony may be dismissed for want of prosecution at any time before replication and examination. After that time, the motion would be irregular, the proper application then being that the complainant may proceed to perfect the examination of the witnesses within a given time, or that he pay the defendant his costs. Such a bill is never brought to a hearing. If improperly brought to a hearing, the bill will be dismissed, but the depositions taken may still be used as evidence, even though the bill is dismissed." If no sufficient cause is shown why the complainant is not entitled to the taking of the evidence desired, the court will grant leave to the complainant to sue out a commission to examine his witnesses. When such an order is made, it is the right of every 46 89 2 Barbour, Ch. Pr. 142; Bechinall v. Arnold, 1 Vern. 354; Beames, Pleas in Eq. 241. 40 Langdell, Eq. Pl. 237. 41 2 Barbour, Ch. Pr. 142. For instance of answer to such a bill, see Pettebone v. Everhart, 4 Kulp (Pa.) 353. 42 Ellice v. Roupell, 32 Beav. 308. 48 May v. Armstrong, 3 J. J. Marsh. (Ky.) 260. 44 2 Barbour, Ch. Pr. 143; Wright v. Tatham, 2 Sim. 459; Barham v. Longman, 2 Sim. 460. A defendant to a bill to perpetuate testimony of witnesses may apply to dismiss the bill for want of prosecution, as well as in the case of any other bill. Anonymous, 2 Ves. Sr. 497. 45 2 Barbour, Ch. Pr. 143; Anonymous, 2 Ves. Sr. 497; Anonymous, Amb. 237; Hall v. Hoddesdon, 2 P. Wms. 162; Ellice v. Roupell, 32 Beav. 308. 46 Coveny v. Athill, 1 Dickens, 355; Lancaster v. Lancaster, 6 Sim. 439. 47 party to the cause to examine witnesses, and the privilege of cross-examination is allowed as in ordinary cases. After the examination of the witnesses, the suit is ended.48 The defendant is entitled to apply by a motion or petition, of course, for his costs, immediately after the witnesses are examined, upon the simple allegation that he did not examine any witnesses.19 But where the bill was a bill of discovery, as well as a bill to perpetuate testimony, the defendant was allowed costs, so far as it was a suit for discovery, although he had examined witnesses in chief.50 After the testimony is taken, it is filed in the clerk's office for use when the occasion therefor arises.51 By the English practice, the court would not permit the depositions taken under a bill of this nature to be published, except in support of the suit or cause, and then only after the death of the witness, or in case of his being sick or incapable of traveling, or being prevented by accident from attending to be examined.52 The publication of depositions for the purpose of perfecting a title to an estate would not be allowed, even where the witnesses were dead.53 To obtain the order for publication, notice supported by affidavit setting out the necessity therefor was given. Upon such application, the order was drawn up accordingly.54 If the depositions of any part less than the whole of the witnesses are to be published, the order will direct that the depositions of the other witnesses be not pub 47 Sheward v. Sheward, 2 Ves. & B. 116; 2 Daniell, Ch. Pl. & Pr. (4th Am. Ed.) 1573, 1574; Skrine v. Powell, 15 Sim. 81; Abergavenny v. Powell, 1 Mer. 434. 48 Morrison v. Arnold, 19 Ves. 670; Vaughan v. Fitzgerald, 1 Schoales & L. 316. 49 2 Barbour, Ch. Pr. 144; Foulds v. Midgley, 1 Ves. & B. 138. See, also, Berney v. Eyre, 3 Atk. 387; Mackrell v. Hunt, 2 Madd. 34, note. 50 Skrine v. Powell, 15 Sim. 81. 51 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1574. 52 2 Barbour, Ch. Pr. 143; Morrison v. Arnold, 19 Ves. 670; Barnsdale V. Lowe, 2 Russ. & M. 142. 582 Barbour, Ch. Pr. 143; Teale v. Teale, 1 Sim. & S. 885. 42 Barbour, Ch. Pr. 143, 144. |