Wilds v. Wilds

The Chancellor was of opinion that to issue a commission de bene esse for taking the testimony of a party to the cause was not within the precise terms of Rule 47, but it did ,not follow that it was not proper to grant the order applied for. The taking of testimony de bene esse was an ancient practice of the Court of Chancery in cases where it appeared (1) that the witness was seventy years of age and upwards; (2) that the witness was about to leave the kingdom, or, as it would be here, the State; (3) that the- person whose testimony it was proposed to take under the commission was the sole witness to a material fact. Under the English practice which we follow, the issuing of such commissions was not confined to these cases, but the power was exercised by the Court in other cases of urgency, with this difference, that in cases above stated the order would be granted as of course, whereas in other cases it would involve the exercise of a judicial discretion applied to each particular case. The rule in question did not exhaust the power of the Court, nor was it intended so to do. It could in no sense be properly held to limit the ancient powers of the Court with respect to the preservation of such testimony. The rules were not intended, and could not be construed either to create or to limit the jurisdiction of the Court. Each rule was simply intended as a regulation of practice in cases to which it relates. [372] In any case not covered by a rule, the Chancellor considered that he was remitted to the inherent power of the Court to regulate its practice according to the well defined and authoritative precedents,, and that the power inheres in the very constitution of the Court to make such general orders covering classes of cases, or such special orders in any particular case as may from time to time be found necessary. He called attention to the fact that the entire body of rules, as adopted in 1868, commonly known to the profession as “Bates’ Rules,’’“were pervaded with the idea that where the general rule failed to meet the requirements of a particular case, a special order would be made with respect thereto. Chancellor Bates in speaking of the rules as a whole, in his preface, concluded by saying “on the contrary, some, of them must be considered as experimental, and the whole will be subject to revision from time to time for such amendments and additions as experience shall suggest.” The Chancellor then held that the effect of the statute, 16 Del. Laws ch. 537, Revised Code (1893) 798, being to render a party to the cause a competent witness, which was not the case when Rule 47 was adopted, he was remitted to the English precedents for guidance in determining whether a commission should issue, treating the complainant for that purpose as a witness and not as a party; that being the test, it was manifest that an order for a commission should issue. A commission was accordingly issued to William ■ M. Hope, Esq., to take the testimony of Lydia E. Wilds de bene esse and interrogatories and cross-interrogatories were filed and testimony was taken by the commissioner and duly returned. Subsequently, on March 19, 1900, the death of the complainant was suggested and James L. Wolcott, her administrator, was admitted as party complainant and filed an amended bill. No argument was had on the demurrer, however, and subsequently, on motion of James H. Hughes, solicitor for the complainant, with the consent of the solicitors for the respondents, and upon reading the papers in the case and it [373] appearing that all costs had been paid, it was decreed that the cause be discontinued. Note.—The practice in the Court of Chancery for securing testimony of witnesses who are old and infirm, sick and in danger of death, or were going to distant countries, or where there was a single witness to a material fact-in such plight, has been exercised from the earliest times by two distinct methods. One was the issuing of a commission to take testimony de bene esse of such a witness, which was issued in a cause pending, and the other was by a bill to perpetuate testimony. The first method was adopted in causes pending in Chancery; the other required the filing of a bill and was resorted to for the purpose of perpetuating testimony with respect to matters not then in litigation in Chancer}'. Both methods were adopted almost without change from the civil law, which had a two-fold method of examining witnesses in perpetuam rel memoriam. One was the common examination resorted to without waiting for a litis contestatio and the party moving in the matter gave notice, if possible, and proceeded to examine his witness and the depositions were given in case the witness died or went abroad, otherwise they went for nothing. The other was the examination in meliori forma ad transumenda instrumenta which required a litis contestatio before the examination, there being no need of so much celerity in proving instruments as, in the other case, of examining witnesses, who might die or depart. Gilb. Por. Rom. 118, 119; Hinde, 365. It will be readily seen how nearly in this, as in other cases, the English Chancery practice follows the analogies of the Roman law. It is a motion of course, in English Chancery practice, to examine, de bene esse, a witness above seventy years old. Rowe vs. -, 13 Ves. 261; Prichard vs. Gee, 5 Madd. 364; Anonymous, 6 Ves. 573. It may be done on other just and reasonable grounds as was said by Lord Erskine in Shelley vs. -, 13 Ves. 57. In this case the Lord Chancellor said, “upon the reason and justice of the case I should have no doubt in granting this application; though it does not come within any of the three cases: 1st, witness of the age of seventy years; secondly, witness quitting the kingdom; thirdly, a fact depending upon a single witness; and, as Lord Thurlow said (in Pearson vs. Ward, 2 Dick. 648) I would make a precedent if there is not one.” Even the illness of a witness has been held to justify an application of this nature; though in such case, Lord Eldon said, it will be looked at with jealousy, and will not be permitted, unless upon absolute necessity. Bellamy vs. Jones, 8 Ves. 32. It was done in the case of two persons without stating their age in Lord Cholmondeley vs. The Earl of Oxford, 4 Bro. C. C. 156. In Fitz [374] hugh vs. Lee, Amb. 65, the application was for a commission d. b. e. to examine the surviving witness to a will upwards of sixty years of age and greatly afflicted with gravel; the parties all living in Virginia. The application was granted because of the circumstance that the parties lived in Virginia, and the long time required to serve process. Lord Hardwiclce said that if the witness were over seventy years of age the order would be of course. The English practice was adopted by the Maryland Court of Chancery in Lingam vs. Henderson, 1 Bland 236, 238, where a commission d. b. e. was issued to take testimony óf a witness who was alleged to be the only person by whom the plaintiffs expected to prove their claim, that he was then advanced in life and if deprived of his testimony they would not be able to establish their claim. In a note to this case there is stated a previous case as follows •— Rymer vs. Dulany, 1787. Petition for a commission de bene esse, stating that the petitioners, the plaintiffs, were in want of the testimony of Abraham Cream, of Frederick County, who was a material witness for the petitioners in the said cause, and who wras about eighty years of age, and sick and impotent. Granted. Chan. Pro. lib. S. H. H. lett. C. fol. 296. It was about 1851 that the act was passed rendering plaintiffs and defendants competent and compellable to give evidence, 14 & 15 Viet. c. 99, and after the passage of the statute allowing parties to be witnesses the rule was applied to examination of parties d. b. e. under the same conditions. In Forbes vs. Forbes, 9 Hare 461, on application for a commission for the examination of a witness above seventy years of age (such witness being the complainant in the cause and the respondent in a cross cause, whose time for answering had expired, whose answer had not been put in, and being also the party who applied for the commission for the purpose of being examined in her own case under the statute 14 & 15 Viet. c. 99), the Court refused to impose it as a condition in making the order that the answer should be filed. The application was for a commission for the examination of the plaintiff as a witness de bene esse, she being above seventy years of age and in Scotland. Counsel for the defendant, who was also plaintiff in the cross-cause, asked that there might be made a term in the order that the plaintiff who now applied should put in her answer, either first or contemporaneously, in the cross-cause in which she was defendant. If the reason of losing her evidence from her age was sufficient ground for the application, according to the practice of the Court of Chancery, it was equally a ground for giving the plaintiff in the cross-cause the benefit of her discovery at the earliest moment. The examination of the parties themselves was a new proceeding under the recent statute, (14 [375] & 15 Viet. c. 99,) and the Court in adapting its forms to the new practice would follow out its fundamental principles, one of which was that he who comes for equity must do equity. The Vice Chancellor (Sir G. J. Turner) said: “The motion is of course. I cannot impose upon the party who applies for the order such a condition as is asked. The statute which has come into operation was not intended to alter the practice of the Court. I do not see any ground for distinguishing this case from that of any other in which an aged witness is to be examined.”