1822-Angell v. Angell.

witnesses, whom he prayed he might examine in order to perpetuate their evidence, was in danger of being lost. (a)

The court called upon Mr, Pemberton, the counsel for the plaintiff, to produce some authority in support of such a bill as this, which sought to perpetuate the testimony of witnesses where no action at law had been brought, and nothing was averred in the bill to show that an action could not be brought immediately. No such authority could be produced at this time, and the case was therefore allowed to stand over for a week.

Mr. Pemberton, for the bill.

This bill prays for a commission to examine witnesses abroad, and is in fact a bill for a commission, and for a discovery. It must be considered to be a bill for discovery, because it contains interrogatories as to how the defendant is entitled to the lands in question. It is clear from the authorities, that a bill for discovery will lie before an action at law is brought. There has indeed been a difference in the practice on this point; but the latest authorities are in favor of the doctrine, that there may be a bill for discovery before an action is brought. This could not be considered as *a bill for relief, [*87] merely because it prays for a commission to examine witnesses. Moodalay v. Morton (b) is an express decision, that a demurrer will not hold to a bill for a commission to examine witnesses, because no action has been brought. Mendes v. Barnard (c) is another authority to the same effect; and another case, Emmot v. Aylet, is mentioned by Sir Lloyd Kenyon, in his judgment in Moodalay v. Morton. It is said by Lord Eldon, in The City of London v. Levy, (d) that where the bill avers that an action is brought, or where the necessary effect in law of the case stated by the bill, appears to be, that the plaintiff has a right to bring an action, he has a right to a discovery to aid that action so alleged to be brought, or which he appears to have a right and intertion to bring." The same reasoning which applies to the case of a bill for discovery, must apply also to a bill for a commission to examine witnesses, because they are bills of the same nature; and in both cases the costs must be paid by the plaintiff. (e) It might be said, that, if the bill for a commission was brought before action, the plaintiff might never bring his action, but the same thing might be said of a bill for discovery. The demurrer, even if good as to the other parts of this bill, does not extend to the discovery which is sought by it.

Mr. Bell, and Mr. Ellison, for the demurrer, relied on the general rule, that a bill of this nature could not be sustained before action; and contended that Moodalay v. Morton, and the other cases cited, were cases of exception on account of particular circumstances; and they cited the case of Pitt v. Short, before Lord *Eldon, Trin. 1810, in which it was decided, that a [*88] demurrer would hold to a bill for a commission to examine witnesses, in

(a) See Mitf. 41 & 12.

(c) 1 Dick, 65.

(b) 2 Dick 652; 1 Bro. C. C. 169.
(d) 8 Ves. 404.

() Mitf. 120

1822.-Angell v. Angell.

aid of an action, if the bill did not state that an action had actually been brought. (f) As to the demurrer for want of an affidavit, it was laid down. expressly by Lord Redesdale, (g) that the want of an affidavit to a bill of this kind is good cause of demurrer. This was plainly a bill for relief, and not a mere bill for discovery.

The VICE-CHANCELLOR :-When this case was opened, it appeared to me that there were other objections to the bill than those which had been suggested, and which might be taken advantage of under the general demurrer ; namely, that, if considered as a bill to perpetuate testimony, it was defective, because it did not allege that the matter in question could not be made the subject of an immediate action: and that if it could be considered as a bill to examine witnesses abroad in aid of an action at law, it was defective, because it did not allege that an action was then pending. And I directed the case to stand over for a week, in order to have those points considered.

Upon the second argument, the counsel for the plaintiff produced the case of Moodalay v. Morton, as an authority for the proposition, that this court would entertain a bill for a commission to examine witnesses abroad in aid of

a trial at law, although no action at law was then pending.

[*89] *The jurisdiction which courts of equity exercise to perpetuate testi

mony, is open to great objections: first, it leads to a trial on written depositions, which is much less favorable to the cause of truth than the viva voce examination of witnesses. But what is still more important, inasmuch as those written depositions can never be used until after the death of the witnesses and are not indeed published till after the death of the witnesses, it follows whatever perjury may have been committed in those depositions it must necessarily go unpunished. And this testimony has, therefore, this infirmity, that it is not given under the sanction of the penalties which the general policy of the law imposes upon the crime of perjury. It is, for these reasons, that courts of equity do not entertain bills to perpetuate testimony generally for the purpose of being used upon future occasion, unless where it is absolutely necessary to prevent a failure of justice.

If it be possible that the matter in question can, by the party who files the bill, be made the subject of immediate judicial investigation, no such suit is entertained. But if the party who files the bill can, by no means, bring the matter in question into present judicial investigation (which may happen, when his title is in remainder, or when he is himself in possession) there courts of equity will entertain such a suit: for, otherwise, the only testimony which could support the plaintiff's title, might be lost by the deaths of his witnesses. Where he is himself in possession, the adverse party might purposely delay his claim with a view to that event. It is therefore, ground of demurrer to a bill to perpetuate testimony, generally, that it is not al

(f) This case is not reported, but was cited from a MS. note of Mr. Newland's. (g) Mitf. 41 & 121.

1822.--Angell v. Angell.

leged by the plaintiff that the matter in question cannot be made by [*90] him the subject of present judicial investigation. But courts of equity do not merely entertain a jurisdiction to take or preserve testimony, generally, to be used on a future occasion, where no present action can be brought, but also, to take and preserve testimony, in special cases, in aid of a trial at law, where the subject admits of present investigation. At law, no commission to examine witnesses who are abroad, for the purpose of being used at the trial, can go without the consent of the adverse party.[1] Courts of equity will, upon a bill filed, grant such commission without the consent of the adverse party.[2] So courts of equity will entertain a bill to preserve the testimony of aged and infirm witnesses to be used at the trial at law, if they are likely to die before the time of trial can arrive and will even entertain such a bill to preserve the testimony of a witness who is neither aged nor infirm, if he happen to be the single witness to support the case.

I have already observed, that the case of Moodalay v. Morton has been cited on the present occasion as an authority that courts of equity will entertain a bill for a commission to examine witnesses abroad in aid of a trial at law, where a present action may be brought, and is not brought. When that case comes to be accurately examined, it will be found not to sustain, nor even to favor, such a general proposition. The object of the bill there, was to discover, by the examination of witnesses in the East Indies, whether the persons who had done the act complained of, had or not the authority of the East India Company, for the purpose of determining whether redress was to be sought against the East India Company, or the person who has done the act individually. The cases cited principally apply to this view of the case; and the learned "judge proceeds upon it. If a bill will [*91] or the purpose of ascertaining facts upon which it must depend against whom the action is to be brought, such a bill must necessarily precede the action; and this case being a case of specialty and exception, rather disproves than affirms the general propositions for which it was cited.

If a bill for a commission to examine witnesses abroad to be used on a trial at law, were entertained before any action actually commenced, then, inasmuch as it is not pretended that there is any time limited within which the future action is to be brought, this consequence might follow; that the plaintiff in the bill, having obtained this written testimony, not given under the sanction of the penalties of perjury, might delay his action until after the deaths of those

[1] Courts of record in New York, are authorized by 2 R. S. 393. § 11, to issue commissions to take the testimony of witnesses resident without the state. This is not, however the introduction of any new practice, as it existed by statutory regulations long preceding, and probably a similar provision in all the other states. The R. S. of New York, however, go further by allowing a plaintiff to obtain a commission, after interlocutory judgment, and thus enables him to support his case, on the execution of a writ of inquiry.

[2] 2 R. S. 398, which in certain specified cases obviates the necessity of filing a bill; but it does not oust the chancery jurisdiction.

1822.--Angell v. Angell.

witnesses for the adverse party resident in this country and subject to viva voce examination, whose evidence might be in opposition to this written testimony; and thus the justice of the case might be defeated. On the other hand, no reason of justice, or even of convenience to the party plaintiff in such a bill, requires that he should be permitted to file it before he has actually commenced his action. The necessary effect of such a bill is, to suspend the trial until the commission is returned, and to secure to him the benefit of his foreign evidence; and all further delay of trial is injustice to the other party.

I am therefore of opinion, both upon authority and upon principle, that a bill for a commission to examine witnesses abroad in aid of a trial at law, where a present action may be brought, is demurrable to, if it do not aver that an action is pending.

[*92]

*The present bill alleges, that the witnesses in America whom the plaintiff purposes to examine in support of the action, which he avers he intends to bring, are aged and infirm, and likely to die before the plaintiff may be able to bring the said intended action to a trial.[1] I have stated, that courts of equity will entertain bills to preserve the testimony of such witnesses, in order to prevent the failure of justice by their death before trial, even where the subject admits of present judicial investigation. In the case of Phillipps v. Carew, (h) it seems to have been held by the master of the rolls, and also by the lord chancellor upon a re-hearing, that such a bill would lie before an action actually commenced, provided the plaintiff annexed to his bill and affidavit of the truth of his alleged statement with respect to the witnesses If that case be to be followed as an authority, it would not assist the present plaintiff, for he has annexed no such affidavit to his bill; and the want of the affidavit is assigned here as a special cause of demurrer.

The principle of that case (supposing it to be correctly reported,) is not, however, very satisfactory. Written depositions, on account of the infirmity which I have before referred to, are never to be received where with reasonable diligence, viva voce testimony may be had, and the circumstance that the witnesses are aged and infirm, should be rather a reason for the action being immediately brought, to give the better chance of their living till the trial,

than a reason for permitting the action to be indefinitely delayed at [*93] the pleasure of the plaintiff. Whenever such a case occurs again, the principle of Phillips v. Carew, will come to be re considered. (i)

(h) 1 P. W. 117.

(i) See as to bills to perpetuate testimony, and for commissions to examine witnesses abroad, the following cases: Duke of Dorset v. Girdler, Pr. Ch. 531; Pawlett v. Ingray, 1 Vern. 308; Gill v. Hayward, 1 Vern. 312; Bechinall v. Arnold, 1 Vern. 354; Parry v. Rogers, 1 Vern. 441; Morse v. Buckworth, 2 Vern. 440; Wynne v. Hally, Pre. Cha. 531; Cressett v. Mitton, 3 Bro. 481; Shirley v. Ferrars, 3 P. W. 77; Brandlyn v. Ord, 1 Atk. 471; Earl of Suffolk v. Green, 1 Atk. 450; and Lord Dursley v. Fitzharding, 6 Ves. 251; in which last case the various authorities were fully discussed. [Vide etiam, Story's Eq. Plead. 243, 252. A bill to perpetuate testimony is never brought to a hearing: Vaughan v. Fitzgerald, 1 Sch. & Lef, 316.]

(1) Vide Conklin v. Hart, 1 Johns. Cas. 103.

1822.-Verlander v. Codd.

On the part of the plaintiff, it is however argued, that if the demurrer could otherwise be supported, it must fail, because it extends to the discovery as well as to the relief, and that if the plaintiff be not entitled for the reason stated, to perpetuate testimony, or to examine his witnesses abroad, yet still he is entitled to a discovery.

I am not of that opinion. ery is incidental to the relief. This plaintiff might perhaps have used expressions, which would have made the discovery a substantive part of his case. It is sufficient to say, that he has used no such expressions in this bill; and that the discovery is only sought for by the common form of interrogatory. Demurrer allowed.

Prima facie, it must be intended that the discov

1822, 28th November.-Practice. Misnomer.

If, in the title of an order to dismiss a bill for want of prosecution, the plaintiff is called by a wrong christian name, a replication filed after the order is drawn up and served, will not be taken off the file.

On the 27th of July last, the defendant obtained an order to dismiss the bill in this cause for want of prosecution.

The plaintiff's name was Jacob Alexander Verlander; but, in the title of the order, he was called, by mistake, Daniel Verlander. The order, so drawn up, was duly served upon the plaintiff's clerk in court on the 22d day of August last.

On the 29th of October last, the plaintiff filed a replication.

Mr. Bligh, for the defendant, moved to take the replication off the file, for irregularity. He contended that no service of the order was necessary, but that it operated from the time it was pronounced; and he cited Lorimer v. Lorimer. (a)

The VICE-CHANCELLOR:-What is decided in Lorimer v. Lorimer is, that when you draw up the order, it acts retrospectively from the time it was made. The bill is not out of court until you draw up the order; and, when it is drawn up, it acts retrospectively from the time it was made. This is an order dismissing the bill of Daniel Verlander; whereas there is no such cause in court.

(a) 1 Jac. & Walk. 284.

Motion refused. [1]

[1] This case was affirmed on appeal to the Lord Chancellor, 1 Turner 95.