De bene esse

De bene esse is a 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 of a witness before trial in the Court of Chancery:

After a Bill filed in any 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 examined in Chief, regularly, such Depositions shall not be made use of.^[1]

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 admissibility:

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 (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.^[2]

United States

In the context of 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."^[3] A 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.^[4]

In past times, an appearance de bene esse was a special appearance made solely to contest jurisdiction.^[5] The procedure has long been abolished in most if not all jurisdictions in favor of allowing jurisdictional objections to be made either by motion or set out as an affirmative 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,^[6] and, in Pennsylvania, by a 1965 amendment to the state rules of civil procedure.^[7] The procedure has been referred to by sovereign citizens.^{[citation needed]}

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”.^[8] 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.^[9] All such evidence must be taken de benne esse. For example, see Restoule et. al. v. Ontario (Court no. C-3512-14), and Restoule v. Canada (Court no. C-3512-14A).

References

^ "Of examining Witnesses de bene esse, and establishing their Testimony in Perpetuam rei Memoriam". Equity Cases Abridged. 1744. p. 233. Archived from the original on 2024-08-24. Retrieved 2020-09-14. Reported at (1744) 21 ER 1013.
^ R v Mirza [2004] UKHL 2; [2004] 1 AC 1118 [146].
^ Black's Law Dictionary, 5th edition.
^ See, e.g., Coface Collections N. Am., Inc. v. Newton Archived 2016-03-05 at the Wayback Machine, 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)).
^ Farmers Trust Co. v. Alexander, 6 A.2d 262, 265; 334 Pa. 434, 440 (1939).
^ 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).
^ See Fleck v. McHugh, 241 Pa. Super. Ct. 307, 313 (1976); Pa. R. Civ. P. 1012.
^ "Protocol - Elder Evidence" (PDF). 2018. Archived (PDF) from the original on 20 May 2024. Retrieved 24 August 2024.
^ "Protocol - Elders Evidence" (PDF). Restoule v. Ontario and Canada : Protocol - Elders Evidence. 2018. Archived (PDF) from the original on 20 May 2024. Retrieved 24 August 2024.

[1] "Of examining Witnesses de bene esse, and establishing their Testimony in Perpetuam rei Memoriam". Equity Cases Abridged. 1744. p. 233. Archived from the original on 2024-08-24. Retrieved 2020-09-14. Reported at (1744) 21 ER 1013.

[2] R v Mirza [2004] UKHL 2; [2004] 1 AC 1118 [146].

[3] Black's Law Dictionary, 5th edition.

[4] See, e.g., Coface Collections N. Am., Inc. v. Newton Archived 2016-03-05 at the Wayback Machine, 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)).

[5] Farmers Trust Co. v. Alexander, 6 A.2d 262, 265; 334 Pa. 434, 440 (1939).

[6] 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).

[7] See Fleck v. McHugh, 241 Pa. Super. Ct. 307, 313 (1976); Pa. R. Civ. P. 1012.

[8] "Protocol - Elder Evidence" (PDF). 2018. Archived (PDF) from the original on 20 May 2024. Retrieved 24 August 2024.

[9] "Protocol - Elders Evidence" (PDF). Restoule v. Ontario and Canada : Protocol - Elders Evidence. 2018. Archived (PDF) from the original on 20 May 2024. Retrieved 24 August 2024.

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