The complainant at the filing of his bill, was in the exact situation entitling a party to the relief sought by the bill. He was in possession of lands of his deceased wife, claiming to hold as tenant by the curtesy. This was unquestionably a sufficient interest tó be protected. Evidence material to his title rested in the exclusive knowledge of two witnesses; and being himself in possession, it was not in his power to bring the title to a trial at law under immediate judicial investigation, so as to secure the evidence against loss by the death of these witnesses. These are the grounds of this sort of relief. Duke of Dorset vs. Girdler, Prec. in Ch. 531; Angell vs. Angell, 1 Sim. & Stu. 83; 2 Sto. Eq. Jur. Sec. 1508. The *273bringing of the ejectment by the defendants after the bill was filed, does not relieve the complainant from the risk to his title even as to the house for which the ejectment is brought, for, however probable that the action will reach a trial, this cannot be certain to the complainant. Were a commission to perpetuate this testimony to be now refused because that action is pending, the defendants might, immediately and before a commission could issue from the Superior Court, discontinue the ejectment and leave the complainant precisely where he was at the filing of his bill, and so toties quoties. To deprive the complainant of this relief, it must appear to rest in his own power, and not at all in the option of his adversary, whether to bring the title to a present judicial investigation. This is the clear principle of the two leading authorities before cited. But, further, the pending ejectment tries the title only as to the house which is the subject of it. Its result determines nothing as to the two farms ; and were it only to protect his alleged title to these, the complainant is clearly entitled to a commission.
The other objection is also untenable. The allegation in the bill, as to the old age and infirmity of the witnesses, is immaterial; and the denial, and even disproof of it, can have no effect. The distinction was well taken by the complainant’s solicitor, between a commission to take testimony ¿fe bene esse and a suit to perpetuate testimony. 2 Dan. Ch. Pr. 955; 2 Sto. Eq. Jur. Sec. 1513; Angell vs. Angell, supra. The former is granted only in aid of a suit pending, in which it is presumable that the rights in issue will be speedily determined : and there, to induce the Court to interfere, the risk of losing the testimony must be imminent, as from the old age, infirmity or expected removal of the witness, or where there is only one witness, to a material fact, Commissions ¿fe bene esse and for the examination of witnesses resident abroad, are not issued now by this Court, except in aid of its own suits, the State *274Constitution having vested in the courts of law the same power in suits there pending. Bills to perpetuate testimony proceed, not on the ground of imminent risk of loss before a pending suit can reach a trial, 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. The right to this relief, therefore, does not depend upon the condition of the witness, but upon the situation of the party, and his power to bring his rights to an immediate investigation. It is true, as stated by Sir. John Leach, in Angell vs. Angell, Sim. & Stu. 83. that this jurisdiction is open to objections, but these are practically obviated by requiring, in the first place, that the party seeking relief shew his utter inability to bring his title to a trial, and, also, by keeping the testimony, when taken, sealed and not to be opened except by special order upon affidavit shewing the death or absence of the witness, or his inability to attend the trial—a rule rigidly enforced—2 Sto. Eq. Jur. Sec. 1516; Morrison vs. Arnold, 19 Ves. 670; Barnsdale vs. Lowe, 2 Russ. & Myl. 142.