Esse

One which is brought to take the testimony of witnesses to a fact material to the prosecution of a suit at law which is actually commenced, where there is good cause to fear that the testimony may otherwise be lost before the time of trial; Hall v. Stout, 4 Del. Ch. 269, where the distinction between this bill and one to perpetuate testimony is clearly stated. The right to a bill to take testimony de bene esse depends on the condition of the witness, while the other depends on the situation of the party with respect to his power to bring his rights to immediate investigation; id.

See 1 S. & S. 83; 2 Story, Eq. Jur. § 1813, n.; 13 Ves. 56.

It lies, in general, where witnesses are aged or infirm; Cooper, Eq. PI. 57; Ambl. 65; 13 Ves. Ch. 56, 261; propose to leave the country; 2 Dick. 454; Story, Eq. PL § 308; or there is but a single witness to a fact; 1 P. Wins. 97; 2 Dick. 648. The one at whose instance the deposition is taken has no control over it, and if he directs the commissioner to withhold it because he is surprised by the testimony, the court will order its return; First Nat. Bank of Grand Haven v. Forest, 44 Fed. 246. BILLA CASSETUR (Lat. that the bill be quashed or made void). A plea in abatement concluded, when the pleadings were in Latin, quod billa cassetur (that the bill be quashed).

3 Bla. Com. 303.