De bene esse

2024-12-23T21:30:51Z

2003:E3:9F4D:E207:24AC:44B2:C99E:BDDB: /* Canada */ fix typo "benne" > "bene"

{{Italic title}}
'''''De bene esse''''' is a [[List of Latin legal terms|Latin legal term]] meaning ''of well being.'' It can refer to various acts which are conditional, provisional or anticipatory.

==United Kingdom==

''De bene esse'' has been used in [[English law]] for hundreds of years. For example, in ''Equity Cases Abridged'' (1744), it was used to describe the [[deposition (law)|deposition]] of a [[witness]] before [[trial]] in the [[Court of Chancery]]:
{{quote|After a Bill filed in any [[cause of action|Cause]], the Court will, on [[Affidavit]], that any of the Witnesses are aged or infirm, sick, or going beyond Sea, so that the Party is in Danger of losing their Testimony, '''order them to be examined ''de bene esse''''', which will make their Depositions valid in that Cause only, and against those who are Parties to it; but if it appear, that they might afterwards have been [[examination in chief|examined in Chief]], regularly, such Depositions shall not be made use of.<ref>{{cite book
|title=Equity Cases Abridged
|url=https://books.google.com/books?id=bn42AQAAMAAJ
|page=233
|year=1744
|chapter=Of examining Witnesses ''de bene esse'', and establishing their Testimony ''in Perpetuam rei Memoriam''
|chapter-url=https://books.google.com/books?id=bn42AQAAMAAJ&pg=PA233
|access-date=2020-09-14
|archive-date=2024-08-24
|archive-url=https://web.archive.org/web/20240824233857/https://books.google.com/books?id=bn42AQAAMAAJ
|url-status=live
}} Reported at (1744) 21 [[English Reports|ER]] 1013.</ref>}}

In ''R v Mirza'' (2004), [[Lord Hobhouse of Woodborough]] used the term to refer to evidence which a court receives provisionally for the purpose of assessing its [[admissible evidence|admissibility]]:
{{quote|A [[jury]] note or letter will, save in exceptional circumstances, always be looked at by the trial judge and, if there is an appeal, by the [[Court of Appeal of England and Wales|Court of Appeal]] ('''the legal expression is ''de bene esse'' – ''ie'' for what it is worth'''); its existence and character will normally be disclosed to the parties' [[counsel]] and submissions as to its significance, and/or responded to, be invited.<ref>{{cite BAILII
|litigants=R v Mirza
|court=UKHL
|year=2004
|num=2
}}; [2004] 1 [[Law Reports|AC]] 1118 [146].</ref>}}

==United States==

In the context of [[Law of the United States|American law]], a proceeding ''de bene esse'' is one "which [is] taken ''[[ex parte]]'' or provisionally and [is] allowed to stand as well done for the present."<ref>Black's Law Dictionary, 5th edition.</ref> A [[Deposition (law)|deposition]] that is used or intended to be used in place of a witness' live testimony in court is referred to as a ''de bene esse'' deposition.<ref>''See, e.g.,'' [http://www.ded.uscourts.gov/sites/default/files/opinions/lps/2012/december/11-52.pdf#page=2 Coface Collections N. Am., Inc. v. Newton] {{Webarchive|url=https://web.archive.org/web/20160305054739/http://www.ded.uscourts.gov/sites/default/files/opinions/lps/2012/december/11-52.pdf#page=2 |date=2016-03-05 }}, No. 11-cv-52, at 2 n.1 (D. Del. Dec. 28, 2012) (mem.) ("''De bene esse'' depositions are not listed in the [[Federal Rules of Civil Procedure]] but are understood by courts to mean depositions that will be used to preserve testimony for trial rather than to discover new information. ''De bene esse'' depositions are sometimes referred to as 'preservation depositions' or 'trial depositions.'" (citation omitted)).</ref>

In past times, an appearance ''de bene esse'' was a [[Appearance (law)#Special appearance|special appearance]] made solely to contest jurisdiction.<ref>Farmers Trust Co. v. Alexander, 6 A.2d 262, 265; 334 Pa. 434, 440 (1939).</ref> The procedure has long been abolished in most if not all jurisdictions in favor of allowing jurisdictional objections to be made either by [[Motion in United States law|motion]] or set out as an affirmative [[Defense (legal)|defense]] in a responsive [[pleading]] (an answer to the complaint): in the Federal courts, the procedure was superannuated by the adoption of the [[Federal Rules of Civil Procedure]],<ref>''See'' Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3d Cir. 1944) (“Rule 12 has abolished for the federal courts the age-old distinction between general and special appearances. A defendant need no longer appear specially to attack the court’s jurisdiction over him. He is no longer required at the door of the federal courthouse to intone that ancient abracadabra of the law, de bene esse, in order by its magic power to enable himself to remain outside even while he steps within. He may now enter openly in full confidence that he will not thereby be giving up any keys to the courthouse door which he possessed before he came in.”); Fed. R. Civ. P. 12(b)(2).</ref> and, in [[Pennsylvania]], by a 1965 amendment to the state rules of civil procedure.<ref>''See'' Fleck v. McHugh, 241 Pa. Super. Ct. 307, 313 (1976); Pa. R. Civ. P. 1012.</ref> The procedure has been referred to by [[sovereign citizens]].{{cn|date=August 2024}}

==Canada==

In Canadian law, taking of commission evidence at a provincial court level - particularly in hearing the Oral Testimony of [Indigenous] Elders known better as “''Elders Protocol''”, must be specially requested and only admitted on the hearing Court’s acceptance and approval by issuing an “Elders Protocol Order”.<ref>{{Cite web |date=2018 |title=Protocol - Elder Evidence |url=https://www.rht1850.ca/_files/ugd/d8bed7_f682e6082b054eb3b076525cafbe5586.pdf?index=true |access-date=24 August 2024 |archive-date=20 May 2024 |archive-url=https://web.archive.org/web/20240520071023/https://www.rht1850.ca/_files/ugd/d8bed7_f682e6082b054eb3b076525cafbe5586.pdf?index=true |url-status=live }}</ref> Evidence given under such an Order can include oral stories and oral history, demonstrative evidence (ceremonies, dance, drums, song, dress), and other traditional customs the Elders may use to share their knowledge and stories relating to the case at hand.<ref>{{Cite web |date=2018 |title=Protocol - Elders Evidence |url=https://www.rht1850.ca/_files/ugd/d8bed7_f682e6082b054eb3b076525cafbe5586.pdf?index=true |url-status=live |access-date=24 August 2024 |website=Restoule v. Ontario and Canada : Protocol - Elders Evidence |archive-date=20 May 2024 |archive-url=https://web.archive.org/web/20240520071023/https://www.rht1850.ca/_files/ugd/d8bed7_f682e6082b054eb3b076525cafbe5586.pdf?index=true }}</ref> All such evidence must be taken ''de bene esse''. For example, see ''Restoule et. al. v. Ontario'' (Court no. C-3512-14), and ''Restoule v. Canada'' (Court no. C-3512-14A).

==References==
{{reflist}}

[[Category:Latin legal terminology]]

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De bene esse