Hall v. Stout

Citations

• 4 Del. Ch. 269

Syllabus

<p>A party in possession of lands of his deceased wife, claiming to hold as tenant by the curtesy, held, entitled to maintain a bill to perpetuate testimony to secure against the contingency of their death, evidence, material to his title, which rested exclusively in the knowledge of two witnesses.</p> <p>The bringing of an ejectment by the defendants, after the bill was filed, does not deprive the complainant of his right to perpetuate the testimony, because the defendants have it in their power at any time to discontinue the • action at law before a commission could issue and so toties quoties.</p> <p>To deprive a party of this relief, it must appear that it lies in his own power, and not at the option of his adversary to bring the title to a present judicial investigation.</p> <p>Old age and infirmity of the witness are not essential to the right to maintain a bill to perpetuate testimony.</p> <p>Bills to perpetuate testimony proceed not on the ground of imminent risk of loss before a pending suit can reach a trial, as do commissions de bene esse, but on the ground that the party not being in a situation to bring his title to a trial, his evidence may be lost through lapse of time, a risk affecting all evidence, irrespective of any particular condition of a witness.</p> <p>Evidence taken under a bill to perpetuate testimony must be kept sealed, and not opened, except by special order upon affidavit shewing the death or absence of the witness, or his inability to attend the trial.</p>