De bene esse

Lat, [L.¥r, del hien estre.J In old practice and conveyancing. Of well being; of form; of mere form; of necessary, sufficient or advisable form; of good precaution; of contingent or possible utility or necessity; of conmtional or permissive validity. To pass as a matter of form; to be advisable in point of form; to be allowed, as of present formal sufficiency, with reference to something future. > See injra. In modem practice. Of well being; of present or temporary formal sufficiency; of conditional validity; conditionally. To be good or valid for the present, subject, however, to some future and further proceeding. A term applied to such acts or proclings as are done or permitted to take place in an action, but the validity or effect of which depends upon some subsequent act, fact, matter or proceeding. Thus, to declare de bene esse in a bailable action, is to declare on condition that bail is duly put in, which is expressed by the endorsement of the words " de bene esse" on the declaration itself. When bail is put in, the declaration becomes absolute, as in other cases. 1 Archb. Pt, 121. 1 Tvdd's Pr, 419. To examine a witness de bene esse is to examine him out of court before the trial, subject to the contingency of his being able to attend court at the trial. If he be unable to attend,, such examination is good, and the deposition may be read in evidence on the trial. But if he be able to attend, the examination is of no validity, and he must be examined again at the trial in the usual way. Orah, Pr. 584. 1 Burr. Pr, 212, 447. The common practice of allowing a jury to find a verdict subject to the opinion of the court, is properly a proceeding de bene esse, and was anciently so called, as it still is, occasionally. Dyer, 55 b, 120. The precise literal meaning of this very old, but still common technical expression, (the practical import of which is well enough understood,) seems to have been a matter of uncertainty and difficulty ever since the time of Cowell, who observes that " de bene esse are common Latin words, but their meaning something more dark." This obscurity nas doubtless principally arisen from the peculiar structure of the phrase itself, which has rendered a literal translation into English a matter of so much difficulty, that most interpreters, following Cowell's example, have contented themselves with expressing the sense in terms of as close approximation as was supposed practicable. From this circumstance, m connexion with the apparent absence of words expressive of the idea of condition, now inseparable from its meaning, it has sometimes been supposed to be a fragment of a longer phrase or sentence, which supplied the words (now lost) necessary to complete the sense. A reference to its origin, however, will tend, it is believed, to show that it is not only perfect in itself, and as well constructed as many other phrases in the same technical dialect, but that the material idea of conditionia still inherent in its emphatic word bene, though in a great degree obscured by the more modem application of it. The phrase itself, it may be observed, appears to have been not originally a Latin one, but a very literal translation of the law French del bien estre, of which more will be said presently. This, at least, may be assumed from the circumstance that it is not to be found in Bracton, — the great source of most of the technical Latin of the English law, — ^while in the law French of Britton it not only occurs in form, but its component words are constantly used in connexions which throw an important light upon its meaning. Thus, in the chapter De chartres, in explaining the forms of the charters or deeds of the time, and what words were advisable or necessary to be used in them, it is said by this author of certain words, " Car teles paroles sount plus del bien estre qtie de la substaunce de la besoigne, nequedent tout soient teles p*oles mys en escritz, eles ne grevent nient;" which may be literally rendered, " for such words are more of form (more de bene esse) than of necessary substance; nevertheless, if they are put in writings, they do no harm." £ritt, c. 89. The context here plainly shows the meaning of del bien estre to be, ofform,^literally, of well being, — ^which may be considered the original sense; bien, the em{)hatic word, (like the Latin bene,) being continually used by the same author to denote form, with the modifications of mere or indifferent form, (as in the passage quoted,) sufficient form, necessary form, and advisable form, according to its various applications. Thus, a writ is said to be mye bien conceu, not well conceived, that is, insufficient in form, or not framed according to a necessary prescribed form. Britt, c. 48. So, it is said of certain defendants m a writ, — ils se mittent bien en Dieu, et en la graund assise; they put themselves well (that is, in solemn form) on God, and on the. grand assise. Id. ibid. The corrf spondingr English word " welV is constantly used in the old reports in precisely the same sense; the phrase of the court being, — ^where a writ or count is objected to as msufficient in form, and held to be good — ** the writ (or count) is ivelir Another modification of this radical idea of /or»i expressed by the word bien, (and the most important one for the purpose of the present illustration,) is that of advisable form. Thus, where the insertion of a word or clause in an instrument is recommended as advisable or prudent, the language of the author already quoted is,— ^/aii bien a espedfier; it is well to specify, (or hon est de espeeifier, it is good to specify; est bane cautele, it is a good precaution,) as distinguished from '^coviendra," or " necessarie,' which are the words used where a form is directed as necessary. Britt. c. 39. So, in regard to miscellaneous matters of practice, it is constantly said, — fait bien a prendre pages, it is well to take pledges or security; fait bien examiner le verdit, it is well to examine the verdict; and the like. Id, cc. 51, 97. It is from this ancient sense of bien or bene, — (still accurately expressed by the' English " toell,**) — the radical idea of which is, form observed with reference to future, rather than present use or effect, — ^that the phrase de bene esse appears to have derived the sense of conditional validity, now inseparable from its meaning in practice, and which has already been si&ciently explained. From the first quotation above given from Britton, it will be seen that del bien estre was employed at the remote age of that author, as a phrase in the law of conveyancing. As early as the time of Dyer, however, it (or its Latin equivalent, de bene esse) seems to have become more exclusively used as a technical term of practice, and in nearly or quite the sense which the latter phrase now bears. This will appear from the following passages taken from the original law French oi Dyer's Reports, which are moreover important as showing about what time the French became exchanged for the Latin form which has ever since been used. Al peril del plainiife, de bene esse, le verdict fuit pris; at the peril of the plaintiflf, de bene esse, the verdict was taken. Dyer, 55 h, Le juris fuyt charge de bene esse de inquirend' des dammages, <Sbc.; the jury was charged de beihe esse to inquire of the damages. Id, 120 a. Et auxi charge, de bien esse, si le plaintifefuit, <fec.: and also charged, de bien esse, if the plaintiff was, <&c. Id, 120 b. j Et /e juris charge al request del accessory, de bien esse, d* enquirer de les abettors, <fec.; and the jury was charged at the request of the accessory, de bien esse, to inquire of the abettors, c&c. Id. ibid. As to the peculiar structure of the phrase de bene esse in a grammatical point of view, it will be sufficient to observe that esse and its compounds are constantly employed in law Latin as substantives, in connexion with prepositions, adjectives and other part of speech. In esse (in being) will occur as a very common example of tins kind of construction, which, though imcouth and barbarous, seems to be necessary in order to express the intended idea with brevity, and at the same time with entire precision. The style of the infinitive, however, is still sometimes observed in translation, as will be seen from the definitions already given. See JEsse,

practice. A aid proceedings, which are deemed to be well done for the present, or until an exception or other avoidance; that is, conditionally, and in that meaning is the phrase usually accepted. For example, a declaration is filed or delivered, special bail put - im, witness examined, &c. de bene esse, or conditionally; good for the resent. °: