Perpetuating Testimony - Definition - Law Dictionary Home Dictionary Definition perpetuating-testimony

Definition :

Perpetuating testimony. When evidence is likely to be irrecoverably lost, by reason of a witness being old, or infirm, or going abroad before the matter to which it relates can be judicially investigated, equity will, by anticipation, preserve and per-petuate such evidence in order to prevent a failure of justice; and by (English) R.S.C. Ord. XXXVII., R. 35, superseding but substantially reenacting the repealed 5 & 6 Vict. c. 69, any person who would become entitled, upon the happening of any future event, to any honour, title, dignity, or office, or to any property, real or personal, the right or claim to which cannot by him be brought to trial before the happening of such future event, may commence an action to perpetuate any testimony which may be material for establishing such right or claim.

This jurisdiction emanates from the anxiety of equity to ward off litigation, where it may be oppressively exercised, by preserving the evidence in maintenance of an unpossessed legal right, or where an adversary with an apparent right is postponing his attack against the lawful possessor, until the death of witnesses who can give evidence against his claim. A common case used to be that of a devisee establishing a will against the heir-at-law, by compelling him to litigate the question at once or not at all, and by perpetuating the evidence of the attesting witnesses. See DE BENE ESSE.

The suit for declaration of legitimacy is in the nature of a suit for perpetuating testimony. See LEGITIMACY DECLARATION ACTS.

The Criminal Law Amendment Act, 1867 (30 & 31 Vict. c. 35), s. 6, provides in criminal cases for the taking of the depositions of persons dangerously ill and not likely to recover, and the making of the same evidence in certain events after the death of such persons, and see now (English) Criminal Justice Act, 1925 (15 & 16 Geo. 5, c. 86), s. 13 (3).