Smith v. . Ballard

was of opinion that this being a bill to perpetuate testimony relative to lands of which the complainants were out of possession, should be dismissed upon the demurrer filed to it. The complainants might sue at law, and have the benefit of the teste money immediately, notwithstanding (1 P. W., 117); and notwithstanding there was an affidavit here as to some of the witnesses, that they were aged and infirm and not likely to live long. And he seemed to think there was still less reason here for perpetuating testimony in such a case than in England, for here, when an action at law is commenced, the depositions of the witnesses may be taken, but their depositions cannot be taken in a suit at law, and, of course, as to those who were not able to travel to court, their evidence must still be lost to the plaintiffs; and that possibly might be the reason of the decision in 1 P. W., 117.

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