29 Of the examination of

Bene Esse.

cery, wherein the said A. B. is complainant, and C. D. defendant, to discredit the testimony of G. T. I. B. and H. A. three witnesses examined before Esquire, one of the examiners of the said court, on the part and behalf of the said complainant.

1. The said A. B. doth charge and allege, that the said G. T. hath, since his examination in the said cause, owned and acknowledged that he is to receive, or to be paid, and also that he doth expect a considerable reward, gratuity, recompence or allowance, from the said defendant, in case the said defendant recovers in the said cause, or the said cause be determined in his favour, and that the said G. T. is to gain or lose by the event of the said cause.

2. The said A. B. doth charge and allege, that the said I. B. and H. A. are persons of bad morals and of evil fame and character, and that they generally are reputed and esteemed to be so, and that the said I. B. and H. A. are persons who have no regard to the nature or consequence of an oath; and they are persons whose testimony is not to be credited or believed.

These articles being filed with the clerk in court, interrogatories are to be framed on them, upon which the proceedings are to be similar to the proceedings on interrogatories in chief.

Of the Examination of Witnesses De Bene Esse.

Examinations in the court of Chancery, are analowitnesses De gous to the common examination of the Civilians; as where there is danger of losing the testimony of witnesses, by reason of sickness, age, or apprehension of death, or their departure from the state; in any of these predicaments the examination of a witness is said to be De Bene Esse, or upon condition that if the wit

ness die, or be not forthcoming to be examined in chief, in such case, and such case only, the deposition so taken before issue joined shall be valid. The examination of a witness De Bene Esse, may be incidental to every suit in the progress of it, whereas the examination in perpetuam rei me moriam is the fruit of a suit instituted for that particular purpose.(a)

Where a party is apprehensive that witnesses to important facts may die, before any suit or action is brought, and before he can have an opportunity of examining such witnesses in the ordinary way, a bill lies to perpetuate such testimony; and where after a suit is commenced, but before, in the regular course of proceedings, the witnesses can be examined, their testimony is likely to be lost, the court on motion, supported by affidavit, will grant a commission to examine such witnesses De Bene Esse.(b)

Where the application is on the ground of age, the motion requires a notice. (c) A witness who is old, (seventy years,) or infirm, and in danger of dying, or who is the only witness on the subject, (d) or about to quit the kingdom,(e) or go to Scotland, will on motion for that purpose, supported by affidavit, be ordered to be examined De Bene Esse. The court will order a witness to be examined De Bene Esse in a cause, though no answer has been put in, if the necessity of taking his deposition is satisfactorily shown to the court.(f) And in one case, two persons, the only persons who had a knowledge of the material facts

(a) Hinde, 368.

(b) 2 Maddock, 202.

(c) Ibid. Bellamy v. Jones, 8 Ves. 31. (d) Ibid. Mad. Shirly v. Lord Ferrers, 3 P Wms. 77 Pearson v. Ward, 2 Dick. 648. Hankin v. Middleditch. 2

Bro. C. C. 641.

(e) Shelly v., 13 Ves. 57. Fitzhugh v. Lee, Ambl. 65.

(f) Fort v. Ragusin and Barker, 2 Johns. Ch, Rep. 146.

30. Of the examination of

voce at the

eause.

were ordered to be examined De Bene Esse, without any regard to their age.(a)

And it seems, indeed, that wherever justice requires such an examination, it will be granted.(b)

But the court looks with some jealousy on these applications, and never permits them unless upon absolute necessity, because the witness stands pledged to re-swear what has been sworn.(c)

Of the Examination of Witnesses Viva Voce at the
Hearing of a Cause.

This happens, when deeds, writings, or other docuwitnesses viva ments essential to the merits of a cause have been neghearing of the lected to be proved before the publication has passed in the suit, or where the complainant finding sufficient matter confessed in the defendant's answer to ground a decree upon, proceeds to a hearing of the cause upon bill and answer only. The defendant's answer being in such case taken as true in every point, no examination of witnesses is requisite: the proof therefore of deeds, letters, &c. must be by witnesses viva voce at the hearing of the cause.

This is allowed only where the application is by the party, who is to make use of the exhibits. It would seem, that the execution only of deeds, the mere signing of a receipt or acquittance, the hand-writing of letters can be proved by witnesses viva voce, at the hearing. A witness cannot be admitted viva voce to prove the hand-writing of a subscribing witness to a deed, where all the subscribing witnesses are dead, because he must also prove that the subscribing

(a) 2 Mad. 203. Lord Cholmondely v. The Earl of Oxford, 4 Bro. C C. 157.

(¿) 2 Mad. 203. 13 Ves. 56. Shelly v.

(c) Bellamy v. Jones, 8 Ves. 3%.

witness is dead ;(a) and in case of a will, viva voce evidence of the execution cannot be let in at the hearing, because the sanity of the testator, and the due execution may come in question, which cannot be examined ore tenus at the hearing of the cause.(b)

To authorize the examination of a witness viva voce, to prove an exhibit at the hearing of a cause, an order must be previously obtained for that purpose, on motion or petition,(c) and must be served on the opposite party four days before the hearing, so that the party might not be taken by surprise.(d)

Papers and writings of every description may be proved at the hearing, and the witnesses may be crossexamined at the discretion, and under the direction of the court.(e)

But no paper can be proved as an exhibit at the hearing, unless satisfactory reasons be shown to the court why it was not regularly proved in the usual way before the examiner.(ƒ)

Notice of a motion to prove exhibits at the hearing, must be served four days before the hearing.(g)

A deed charged in the bill, and admitted in the answer, may be read at the hearing without having been made an exhibit before the examiner.(h)

After the order to examine a witness viva voce is obtained, you issue a præcipe, the form of which is as follows:

Subpoena Thomas Harwood to appear in Chancery, returnable the day of

(a) 2 Mad. 332. Henley v. Philips,

2 Atk. 48.

(b) 2 Mad. 325. 1 Turn. & Ven. 91, 2. (c) 2 Mad. ibid.

(d) 1 Johns. Chan. Rep. 559-60. Barrow Rhinelander.

to testify viva

(e) Consequa v. Fanning and others,

2 Johns Ch. Rep. 481.

(ƒ) Ibid.

(g) Ibid.

(h) Dey v. Dunham, 2 Johns, Chan Rep. 182.

voce in court, according to the order of court, for A. B. Tested, this day of

1818.

E. F. Solicitor.

The body of this subpoena is in manner and form the same as a subpoena to testify before an examiner, specifying the time and place where the witness must attend.

OF EXPEDITING PROCEEDINGS IN A CAUSE AFTER ISSUE

JOINED.

WHEN the cause is at issue, and either party is desirous to hasten the proceedings, and to put it in a state to be noticed for hearing before the court, he must enter the rules to produce witnesses and to pass publication, and the order that publication pass, of which we have fully treated before, and after publication passed, if the cause be not delayed by any impeachment of the credit or competency of the witnesses, or after the same is disposed of, the cause is in a state to be noticed for hearing.

OF BRINGING THE CAUSE TO HEARING, AND OF HEARING THE CAUSE.

THE cause being now ready to be heard by the court, the next thing is to take measures to bring it before the court for decision.

The thirty-first rule orders, that notice of bringing on a cause to a hearing, including the bringing on the argument of a plea or demurrer, and the argument on