bill to perpetuate testimony

To sustain a bill of this character, it must appear that the facts which the plaintiff expects to prove by the testimony of the witnesses sought to be examined will be material in the determination of the matter in controversy; that the testimony will be competent evidence; that depositions of the witnesses cannot be taken and perpetuated in the ordinary methods prescribed by law, because the then condition of the suit (if one is pending) renders it impossible, or (if no suit is then pending) because the plaintiff is not in a position to start one in which the issue may be determined; and that taking of the testimony on bill in equity is made necessary by the danger that it may be lost by delay.

In equity practice. One which is brought to secure the testimony of witnesses with reference to some matter which is not in litigation, but is liable to become so. It differs from a bill to take testimony de bene esse, inasmuch as the latter is sustainable only when there is a suit already depending. It is demurrable if it contain a prayer for relief. 1 Dickens, 98; 2 P. Wms. 162; 2 Ves. Jr. 497; 2 Madd. Ch. 37. And see 1 Schoales & L. 316.

One which is brought to secure the testimony of witnesses with reference to some matter which is not in litigation, but is liable to become so. It differs from a bill to take testimony de bene esse ('/• v.) inasmuch as the latter is sustainable only when there is a suit already pending. A hill to perpetuate testimony "lies when the party is in actual, undisturbed possession; or where lands are devised by will from the heir at law; or when no action has been brought, hut the party intends to commence a suit.'' Hickman v. Hickman, 1 Del. Ch. 133. It proceeds on the ground that, through lapse of time, a risk affecting all evidence, irrespective of the condition of a witness; Hall v. Stout, 4 Del. Ch. 269. It must show the subject-matter touching which the plaintiff is desirous of giving evidence; Rep. temp. Finch 391; 4 Madd. 8; that the plaintiff has a positive interest in the subject-matter which may be endangered if the testimony in support of it be lost, as a mere expectancy, however strong, is not sufficient; Mitf. Eq. PI. 51; May v. Armstrong, 3 J. J. Marsh. (Ky.) 260, 20 Am. Dec. 137. That the defendant has, or pretends to have, or that he claims, an interest to contest the title of the plaintiff in the subjectmatter of the proposed testimony; Cooper, PI. 56; Story, Eq. PL § 302; and some ground of necessity for perpetuating the evidence; Story, Eq. PI. § 303; Mitf. Eq. PI. 52, 148, n. The bill should describe the right in which it is brought with reasonable certainty, so as to point the proper interrogations on both sides to the true merits of the controversy; 1 Vern. 312; Cooper, Eq. PI. 56; and should pray leave to examine the witnesses touching the matter stated, to the end that their testimony may be preserved and perpetuated; Mitf. Eq. PI. 52. The bill is filed and service made in the usual way; Green v. Compagnia Generale Italiana Di Navigation, 82 Fed. 490. A bill is demurrable if it contains a prayer for relief; Hickman v. Hickman, 1 Del. Ch. 133; 2 Ves. 497. It must appear that the relief is absolutely necessary to prevent a failure of justice; Crawford v. Mc Adams, 63 N. C. 67; if no reason exists for bringing the action in aid of which such a bill is filed, the bill will be dismissed; In re Ketchum, 60 How. Pr. (N. Y.) 154. Where a party sought to perpetuate testimony of his legitimacy, the bill was dismissed because the legitimacy act gave him a remedy; [1903] 2 Ch. 378. So as to a threatened slander suit where the answer released all claims against the plaintiff for slander; Hanford v. Ewen, 79 111. App. 327. The testimony of an injured man not expected to live may be taken for the benefit of his family; Ohio Copper Min. Co. v. Hutchings, 172 Fed. 201, 96 C. C. A. 653 (under a Utah statute). Where one is threatened by patent suits which are not brought, he may file a bill under R. S. § 866, to perpetuate testimony that the patent is invalid; Westinghouse Mach. Co. v. Battery Co., 170 Fed. 430, 95 C. C. A. 600, 25 L. R. A. (N. S.) 673, with note; and it is held that he need not show that it is necessary to take the depositions to prevent a failure of justice; id. BILL TO QUIET POSSESSION AND TIbills quia timet or for the cancellation of void instruments, they may be resorted to in other cases when the complainant's title is clear and there is a cloud to be removed; Mellen v. Iron Works, 131 U. S. 352, 9 Sup. Ct 781," 33 L. Ed. 178; Town of Corinth v. Locke, 62 Vt. 411, 20 Atl. 809; Alsop v. Eckles, 81 111. 424; the latter may be said to exist whenever in ejectment by the holder of the adverse title any evidence would be required to defeat a recovery; Sloan v. Sloan, 25 Fla. 53, 5 South. 603. Whenever an instrument exists which may be vexatiously or injuriously used against a party, after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest, and he cannot immediately protect his right by any proceedings at law, equity will afford relief by directing the instrument to be delivered up and cancelled, or by making any other decree which justice and the rights of the parties may require; Martin v. Graves, 5 Allen (Mass.) 602; Dull's Appeal, 113 Pa. 510, 6 Atl. 540; 2 Story, Eq. § 694. Equity will entertain a bill to adjust the claims or to settle the priorities of conflicting claimants, where there is thereby created a cloud over the title, which would prevent the sale of the land at a fair market price; Bisph. Eq. 236; to restrain the collection of an illegal tax; ibid.; to set aside deeds, etc., which may operate as a cloud upon the legal title of the owner; whether they be void or voidable, and whether the character of tbe instrument appears on its face or not; Kerr v. Freeman, 33 Miss. 292; Peirsoll v. Elliott, 6 Pet. (U. S.) 95, 8 L. Ed. 332; but it has been held that equity will not interfere to remove an alleged cloud upon title to land, if the instrument or proceeding constituting such alleged cloud is absolutely void upon its face, so that no extrinsic evidence is necessary to show its invalidity; nor if the instrument or proceeding is not thus void on its face, but tbe party claiming, in order to enforce it, must necessarily offer evidence which will inevitably show its invalidity; Rich v. Braxton, 158 U. S. 375, 15 Sup. Ct 1006, 39 L. Ed. 1022. In a suit brought in the district court of tbe United States, to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, an order may be made upon a defendant not residing in the district or found therein, and not appearing gratis, to appear and answer, plead or demur by a certain day; 18 Stat. L. 472, c. 137, Sec. 8; Mellen v. Iron Works, 131 U. S. 352, 9 Sup. Ct. 781, 33 L. Ed. 178; but such suit will affect only the property concerned; id. See Bill of Peace; Bill Quia Timet. special circumstances. See 1 Ch. Cas. 3, 61; 2 id. 8; Mitf. Eq. PI. 85, 86. BILL TO TAKE TESTIMONY DE BENE

A bill in equity filed in order to procure the testimony of witnesses to be taken as to some matter not at the time before the courts, but which is likely at some future time to be in litigation. Story, Eq. Pi. (5th Ed.) § 300 et seq.

Defined under Bill in Black's Law Dictionary.