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Depositions under these commissions are taken de bene esse; that is, they shall be deemed to be well taken for the present, or until an exception or other avoidance, that is, conditionally, and in that meaning the phrase is usually accepted. If the witness can be had on trial, he must be produced. 29
3749. There are several classes of cases where there is danger of losing the testimony of witnesses; first, where a party is out of possession and whose right of possession has not yet accrued, and therefore he cannot bring suit; and, secondly, where the party is in possession and he anticipates proceedings against him upon a present apparent right, but the power of commencing suit lies in his adversary, who postpones or may delay the attempt of investigation until the party in possession shall have lost the means of defence by the death of his witnesses. In these cases a court of chancery interferes by taking the proper means of securing the evidence of the witnesses by having it reduced to writing and properly made of record, which is called the perpetuation of the testimony. This is by a bill setting forth the nature of the interest of the parties and the subject of future litigation; to this bill the defendant may set up his defence. These will be separately examined.
3750. The bill must name the parties having an interest, and state particularly the matter touching which the plaintiff is desirous to acquire evidence, so that the interrogatories on both sides may be directed to the true merits of the controversy.30 It should show that the plaintiff has some interest in the subject matter, which may be endangered if the testimony in support of it should be lost ; 31 it must also state that the defendant has, or pretends to have, or that he claims an interest to contest the title of the plaintiff in the subject matter of the proposed testimony.52 The bill must also show some necessity or ground for perpetuating the evidence; as, 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 investigated, the sole right of bringing an action belongs exclusively to the other party; or some other cause which shows clearly that the plaintiff cannot otherwise secure his testimony which is in danger of being lost.33 Such a bill must also show the right in which it is brought, and it should be described with reasonable certainty, so as to point the proper interrogatories on both sides ; for example, when the bill is brought to perpetuate the testimony of witnesses touching a right of way, the bill should state the termini of the way and the per et trans as exactly as in a declara
And when the bill seeks to perpetuate the testimony of witnesses to a will, it should set forth the whole will.35 The bill should pray leave to examine witnesses touching the matter stated, to the end that their testimony may be taken and perpetuated, and it should also pray for a subpoena. But care must be taken to confine the prayer to the object of the bill, and not to pray for relief, or that the defendant may abide such order and decree as the court may make, which would make it a bill praying relief, and for that cause demurrable.36
29 See 1 Greenleaf, Ev. & 320. 30 Bartlet v. Hawker, Madd. Ch. 157; Cooper, Eq. Pl. 53; Mitford, Eq. Pl. 52; Story,
Pl. $ 300.
Cooper, Eq. Pl. 52; 2 Story, Eq. Jur. & 1511 ; Mason v. Goodburne, Cas. temp. Finch, 391.
32 Mitford, Eq. Pl. 53; Cooper, Eq. Pl. 56; 1 Montague, Eq. Pl. 271; Dursley v. Fitzhardinge, 6 Ves. Ch. 260.
33 Story, Eq. Pl. 2 303; Mitford, Eq. Pl. 52, 148, and note (y).
36 Story, Eq. Pl. 8 306; Cooper, Eq. Pl. 52; Vaughan v. Fitzgerald, 1 Schoales & L. Ch. Ir. 316. VOL. IL-31
3751 To entitle the plaintiff to a bill to perpetuate testimony, he must show that he has an interest in the subject matter in dispute, but the amount of his interest, if actually a present interest, however small' in value and however distant the possibility of possession, and whether it be vested or contingent, is altogether unimportant. But a mere expectation is not sufficient, and, therefore, the next of kin or heir apparent of a person living, although the latter be a lunatic, has not such an interest as will support such a bill.
3752. The property respecting which the testimony of witnesses may be perpetuated may consist of hereditaments, corporeal or incorporeal. With respect to personal demands, it is not easy to say in what cases a bill to perpetuate testimony will be sustained. 39
Dursley v. Fitzhardinge, 6 Ves. Ch. 260; Allan v. Allan, 15 Ves. Ch. 13. 38 Dursley v. Fitzhardinge, 6 Ves. Ch. 260 ; Sackvill v. Ayleworth, 1 Vern. Ch. 105. 39 Earl of Suffolk v. Green, 1 Atk. Ch. 450.
PECULIAR REMEDIES IN EQUITY.
3753. The concurrent jurisdiction of courts of equity. 3754-3757. The modes of investigation.
3755. References to masters.
3757, Issues directed to courts of law.
3762. Remedial injunctions.
3771. The parties upon whom an injunction will operate. 3773-3803. For what causes an injunction will be granted.
3774. For injuries to the person. 3775–3795. For injuries to personal property.
3776. To restrain a partner from making and circulating bills.
3790. To stay proceedings in a court of law. 3796–3803. For injuries to real estate.
3797. To prevent irreparable injury by trespass.
3804. The effect of an injunction.
3807. When a receiver will be appointed.
3753. The concurrent jurisdiction of courts of equity is that which is exercised on subjects over which courts of law have also a jurisdiction.
Courts of equity are enabled to secure substantial justice between the parties, in cases where they will interfere, more completely than courts of law, either from their peculiar forms of procedure, from the greater adaptability of their rules to special circumstances existing in particular cases, from the greater variety of remedies furnished, or from the manner of enforcing compliance with their requirements.
At law the only remedy furnished between individuals is by way of pecuniary damages for breach of obligations, or for wrongs committed. Such a remedy is obviously inadequate to the damage in many cases. In many cases, also, courts of law will not interfere, because the party complaining is himself in some degree in fault. Nor do courts of law exercise any preventive or anticipative jurisdiction. Legal process does not prevent the commission of wrongs, but only attempts to enforce compensation for their commission. Compliance with obligations is not secured; compensation in money is rendered for noncompliance.
In many cases of wrong done or threatened, and of refusal to fulfil obligations, equity will interfere to secure justice on account of the inadequacy of the remedy at law for that purpose.
It will be convenient to consider successively the mode of investigating facts by equitable tribunals, the peculiar modes of preventing injustice, the jurisdiction in cases of fraud, accident, and mistake, that for enforcing a fulfilment of obligations, that in various cases of account, that in dower, and that in partition.
3754. The modes of investigating facts practiced by equitable tribunals are reference to a master, and directing issues and trial by jury in a court of law.
3755. When a court of equity feels itself incompetent to grant complete relief without some preliminary information, a reference is made to a master who has power to procure such information for the purpose of satisfying the conscience of the court.
The matters which are usually submitted to a master consist of matters of account, which it may be necessary to examine and settle in the progress of a cause, the investigation of claims upon property in suit, to admit those which are equitable and to reject others, examination of the title to estates, and to settle conveyances, making sale of property, and inquiring into the propriety of granting leases, felling timber, or making repairs, the propriety of appointing new trustees of property, guardians of infants, and committees of idiots and lunatics.
3756. To facilitate inquiries and to render them more effectual, the master is generally authorized to examine witnesses and even the parties in the cause upon interrogatories. The parties who have an interest have a right to have a notice of the time and place of examination; and it seems to be a general rule that all persons interested, either in the estate or fund in question, are entitled to attend before the master on all those proceedings which may affect their interests or increase or diminish their proportion in the fund; thus, all parties entitled to a distributive share of a residue have a right to attend on those proceedings which tend to increase or diminish the residuary fund.?
After having heard the parties, their proofs, and allegations, the master makes his report, which is his certificate to the court how the facts or matters referred to him are or do, upon an examination, appear to him, or of something
* Jeremy, Eq. Jur. 294. * 2 Daniell, Chanc. Pract. 801.
of which it was his duty to inform the court. To this report exceptions may be filed, and if well founded, the report will be set aside; on the contrary, if they are not sufficiently valid, the report will be confirmed, and the court will found a final decree upon it. "
3757. When questions of legal or equitable title, of law, or of fact, arise in the course of proceedings in equity, and they are of great importance, the court will not undertake to determine them, but will direct a trial at law, and upon the result of that trial will in general found its decree. As no jury can be summoned to attend a court of equity, the matter directed to be tried at law is tried in another court. The point which thus occurs may be the proper subject of a trial, or it may be a mere question of law or fact. In the former instance the court of equity, with the consent of all the parties, will direct, and when there is no such acquiescence, will sometimes allow an opportunity for such an action to be brought to try the question at law; in the latter case it will direct a feigned issue, the nature of which has already been considered.? In the case of an issue upon a point of law, it is brought before the common law judges on a demurrer; and if speed be required, a consilium, that is, a special day, will be appointed for the purpose of hearing the argument.
There is one class of cases which the courts of equity will never decide without a decision first being had at law. This is the case of a will of real estate; when disputed, it must be ascertained whether it is the will of the testator or not by a trial under a feigned issue.
3758. There are certain equitable means of relief which may be considered as peculiarly preventive of wrong in their nature, which it seems proper to consider in immediate connection. These are injunctions, bills quia timet, bills of peace, bills of interpleader.
3759. An injunction is a judicial process requiring a party to do or to refrain from doing a particular thing therein specified, according to the exigency of the process. In strictness the term is applicable to a writ requiring the performance or refraining from some particular act, which writ is granted in proper cases upon a particular request therefor by bill. But in many cases a requirement is made by the court in the form of an order in the nature of an injunction; and as the court will enforce a compliance with these orders in the same manner as with a writ of injunction, the distinction is not ordinarily observed in practice, but all such orders are spoken of as injunctions.10
Injunctions must be specially prayed for in the bill, and even when asked for, the question of granting or refusing is one of judicial discretion. The grant is not limited to cases of concurrent jurisdiction. It may be granted as well in cases of auxiliary or exclusive jurisdiction."
3760. This writ is evidently borrowed from the Roman law. The interdict in that system of jurisprudence bears a striking resemblance to an injunction.
* Pract. Reg. 377.
* See, as to references to a master, 2 Daniell, Chanc. Pract. 789-963; Jeremy, Eq. Jur. 293.
5 2 Story; Eq. Jur. & 1478; 3 Sharswood, Blackst. Comm. 452. 6 Jeremy, Eq. Jur. 295.
? Before, 3014. 8 Jeremy, Eq. Jur. 296.
In perhaps all the states of the Union provision is made by statute for the trial of disputed wills.
In some of the states provision has been made also by which a jury may be summoned and their interposition demanded in a court of equity for the determination of questions of fact. In this respect, as in many others, the combination of the gal and equitable jurisdiction in one court diminishes the disadvantages of two systems of relief. 10 Eden. Inj. 290 ; 2 Story, Eq. Jur. & 801. Story, Eq. Plead. & 41.