interrogatories or otherwise: where the witnesses are out of the jurisdiction a commission issues; otherwise a rule or order merely. (See as to these statutes and decisions thereon, Com. Law Pract. pp. 172-175; as to irregularities in the mode of taking the depositions, L. R. 1 C. P. 600.)

VII. Where the depositions of witnesses have been taken either on a bill to perpetuate testimony or to take it de bene esse, if the witnesses can attend at the hearing of the cause in which the controversy has arisen, can their depositions be read? No; for if the witnesses are alive, within the jurisdiction, and capable of attending the trial of an action, or of being examined for the hearing of a suit in equity, the depositions are not admissible in evidence; and, indeed, are not, as a general rule, published until required. (St. s. 1516; Barnsdale v. Lowe, 2 Russ. & Myl. 142; per Lord Eldon, in Morrison v. Arnold, 19 Ves. 671; Spencer v. Peek, L. R. 3 Eq. 421.)

pre

NOTE.-The judgment of Lord Romilly, M. R., in Earl Spencer v. Peek (L. R. 3 Eq. 420, 421), so clearly explains the matters of the questions and answers relative to perpetuating testimony and taking evidence de bene esse that it will be very useful to add it here, mising that the bill was one for perpetuating testimony, and that it alleged, among other things, that a bill had been filed against the plaintiff to the perpetuation bill by the defendant thereto, praying for an injunction against the plaintiff to the perpetuation bill (who was lord of a manor) to restrain him from using the soil of the common for making bricks, and for an account, and that the suit was still pending, and that a material portion of the plaintiff's evidence in support of his defence in that suit consisted of the testimony of four aged persons, and who were the only living persons capable of giving testimony as to some of the matters in the pending suit. The defendant to the perpetuation bill demurred thereto, and the M. R. said :-" I am of opinion that the demurrer must be allowed. The principle which is laid down in all the cases is, that if the matter to which the required testimony is alleged to relate can be immediately investigated in a Court of Law, and the witnesses are resident in England, a demurrer will hold. This is laid down by Lord Redesdale in many of the passages where he mentions those cases. It is contended that this can only apply where the plaintiff in a bill for the perpetuation of testimony can himself bring an action and have the matter tried; but I apprehend that to be a mistake, and that if the matter is in the course of investigation in a suit that removes the exact objection. It is stated by Mr. Justice Story, laying down the same rule, that where a right of action lies in the defendant, although the matter might be investigated in a court of justice, still the bill would lie; and I assent to that view

of the case. What Mr. Justice Story means is, that where the right is in the other party to bring an action against the plaintiff who files the bill to perpetuate testimony, he may maintain such a bill if no action is brought. It is quite new to me and I believe nobody will find such a case in the books-that where a person brings an action or files a bill against a defendant in respect of a matter to be tried, which the defendant might not have been able himself to have put in a course of litigation to get determined, that defendant can file a bill to perpetuate testimony as to the matters in litigation in that suit. I do not believe that any such bill can be found, and it would in my opinion be contrary to principle and precedent. It is obvious that if a person files a bill in this Court against a person who is the owner of an estate, alleging that he is, by reason of certain circumstances, a trustee for the plaintiff, and asking that he shall be compelled to account and deliver it up, a bill by the defendant for the perpetuation of testimony would not lie. The passage in Sir John Leach's judgment, in Angell v. Angell (1 S. & S. 89), has been, in my opinion, misunderstood; he expressly points out that it is where an investigation is about to take place in a Court of justice that such a bill would lie. He says: 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), then 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.' But, instead of delaying his claim with a view to that event, he brings forward his claim immediately; then, as the question will be made the subject of immediate judicial investigation, and as a suit is instituted for that purpose, a bill to perpetuate testimony cannot be brought in aid of the defence to that suit; it can only be brought where the question is not about to be made the subject of judicial investigation. Counsel felt that this was the pinch of the case, and accordingly his argument rested upon this, that the plaintiff in the other suit may dismiss his bill at any moment. Unquestionably he may, and, if there is no bill pending, then the lord of the manor may file a bill for the perpetuation of testimony for the purpose of establishing his rights in the manor; but if the matter is about to be investigated in a pending suit, so long as that suit is in existence, his proper course is to apply in that suit for an order to examine witnesses de bene esse, and not to file a bill for the perpetuation of testimony."

LEGAL REASONS WHY,

BY WAY OF

QUESTIONS AND ANSWERS.

EQUITY PRACTICE.

Notice. The subject of practice cbviously gives little occasion for reasons," but it has been thought nevertheless necessary to furnish questions and answers which, it is hoped, will be found serviceable for the examinations. It will be noticed that the subjects are given alphabetically, which method, it is believed, will be a great improvement, as enabling the reader, without the need of an index, to refer at once to the subjects which he requires, and serving, in some respects, as a Law Dictionary. The edition of Ayckbourn referred to is the 8th, by Mr. Higgins, 1866.-Ed.

ABATEMENT OF SUIT.

I. What is meant by the abatement of a suit?

The occurrence of some event by which a suit cannot be further proceeded with without some step being taken to cure the defect arising from such event. In some cases the abatement is of the suit entirely; in other cases the abatement is partial only—that is, it affects only a particular defendant and his interests: thus the death of one of several defendants makes an abatement quoad himself alone. (2 Dan. Pract. 1429, 2nd ed.) Some events are only quasi abatements, rendering the suit defective, and the course is to stay the further proceeding with the suit until the defect is remedied, as in the case of the bankruptcy of a party to the suit. (1 Dan. Pract., 62,192,787, 2nd ed.; pp. 67, 156, 4th ed.) Mr. Drewry (Equity Pleadings, 87,) says:"The difference between abatement and simple defectiveness was never very clear, and is now unimportant by the 15 and 16 Vict. c. 86."

v. ii. LEG. REAS. WHY

II. What events occasion an abatement of a suit?

An abatement arises by the death of parties, by the transfer of interest, or by operation of law. (Ayckb. 395.) This is explained thus in 2 Daniell's Chanc. Pract. p. 1387, 4th ed.):-"It frequently happens that a suit, though perfect in its institution, becomes defective by the death or marriage, or by some change or transmission of the interest or liability of some of the parties; in such case the suit is said to be abated, or become defective, and, as a general rule, no proceeding whatever can be taken in it until an order to revive the suit or to carry on the proceedings has been made."

III. What is the effect of the death of a plaintiff?

It abates the suit altogether, unless his interest survives to a coplaintiff. (Ayckb. 395; 2 Dan. 1400, 4th ed.)

IV. What is the effect of the death of a defendant?

It abates the suit only so far as his interest is concerned. (Ayckb. 395; 2 Dan. 1399, 4th ed.) That is to say, the abatement is partial only, and where there are distinct co-defendants they may be proceeded against.

V. What is the effect of the bankruptcy of a plaintiff or a defendant?

The suit is not abated, but it is so far defective that the proceedings cannot be continued until the assignees are brought before the court. (Bradberry v. Brooke, 5 W. R. 98; Lewin v. Allen, 8 id., 603; 1 Dan. Pract. 63, 192, 2nd ed.; 10 Jur. 1051.) Lord Eldon, in Randall v. Mumford (18 Ves. 427,) said :-"This Court, without saying whether bankruptcy is or is not strictly an abatement, has said that, according to the course of the Court, the suit is become as defective as if it was abated." (1 Dan. 67, 4th ed.)

VI. What is the effect of the death of an official assignee in bankruptcy being a sole plaintiff in a suit?

The suit does not abate, but may be stayed until a new assignee is appointed and his name substituted for that of the deceased assignee. This is by the Bankruptcy Act of 1849, s. 157, which in terms applies to a plaintiff only. (20 Law Tim. Rep. 231.) It must, however, be borne in mind that under the Bankruptcy Act of 1861 the official assignee is not a necessary party to a suit in equity, nothing vesting in him except debts not exceeding £10-(s. 128; 1 Dan. 68, 4th ed.)

VII. What is the effect of the marriage of a female plaintiff or female defendant?

In general, upon the marriage of a female plaintiff, all proceedings become abated, but this is not so upon the marriage of a female defendant; however, her husband ought to be named in the subsequent proceedings. (Mitf. Plead. 55; 2 Dan. Pract. 121, 169, 1400, 1411, 2nd ed.; pp. 113, 185, 755, 4th ed.)

VIII. Where a suit becomes abated what is necessary in order to continue it?

That it be revived, which is now done in most cases, by an order of revivor, instead of, as formerly, a bill of revivor. The practice will be noticed under the title "Revivor." Where there is a neglect to revive on an abatement, or to proceed on a quasi abatement, the defendant to the suit may move that the suit be revived or proceeded with within a limited time, and that in default the bill may be dismissed. (1 Dan. Pract. 785, 2nd ed.; see Hinde v. Morton, 2 Hem. and Mil. 368; 13 Week. Rep. 401.)

IX. What is the effect of the death of a sole relator proceeding by information merely?

The information is not abated, but proceedings will be stayed until a new relator is named. (1 Dan. Pract. 15, 2nd ed.; p. 14, 4th ed.)

ACCOUNTS.

I. What directions may the Court make in any decree or order respecting the taking of accounts in chambers?

The Court may give special directions with respect to the mode in which the account should be taken or vouched, and may direct that in taking the account the books of account in which the accounts required to be taken have been kept, or any of them, shall be taken as prima facie evidence of the truth of the matters therein contained. (15 & 16 Vict. c. 86, s. 54.)

II. How is an account for chambers to be made out and verified?

The items on each side of the account must be numbered consecutively, and be verified by affidavit, the account being exhibited and not annexed to the affidavit. (Cons. Ord. xxxv. r. 33; Judges' Reg. Aug. 1857, r. 11, 12, 17.)

III. Must an account be vouched?

Unless otherwise directed, an account must be vouched by production of receipts for all payments of 40s. or upwards. (Ayckb. 505, 506.)

IV. Where an accounting party neglects to bring in his account by the time fixed, what should the opposite party do? Take out a summons for the account to be brought in within a limited time; if an order is made, it should be personally served on the accounting party, who on non-compliance may be attached. (Ayckb. 506.)

V. Where it is sought to charge an accounting party beyond what he has by his account admitted to have received, what must be done?

Notice should be given to the accounting party, stating, as far as