case Howard against Tremain on a bill to perpetuate the testimony of witness  de position take de bene be after a commission to answer and the defendant in  contempt though before any answer come in may on the death of two of the  witness examine be read in evidence on a trial after the answer be put in S c  salk S c show S c Carth on the six day of June a bill be exhibit in chancery  and a commission pray to examine witness in perpetuan rei memory in Trinity  term follow the defendant have a commission to answer and the plaintiff  examine his witness de bene be but no answer come in till two year afterward  in which time two of the witness die the question now be whether these  deposition can be read in evidence at a trial at bar it be say that it be the  usual practice in chancery to examine witness de bene be and that if they die  before they be examine in chief their evidence be good for if such evidence  shall not be allow at law it will be a mean to enlarge the jurisdiction of  that court and the party grieve will have a new equity nothing be more  necessary than that the examination of witness shall be in the proper court  where the cause be depend and this be the mean to do it videlicet to examine  they de bene be if the defendant shall be obstinate and refuse to answer he  may stand out in contempt of the court and so prevent the plaintiff from  perpetuate his evidence and this be no inconvenience to the defendant  otherwise than by punish his person by imprisonment for after his answer come  in he have the same advantage in every respect as he have before he be in  contempt it be no objection to say that issue be not join in chancery because  where deposition take in that court be give in evidence at law there be no  proof but of bill and answer file in the cause modern and therefore in the  case of ford v gay deposition though exemplify be refuse by pollexfen chief  justice to be give in evidence because there be no proof of a answer e contra  there can be no examination of witness upon a bill alone and the fault be in  the plaintiff for not compel the defendant to put in his answer in two year  after the bill file now when his answer be file those deposition which be take  de bene be be of no use for suppose a bill be bring against husband and wife  for something which the man claim in right of his wife and witness be examine  de bene be and then the husband put in his answer this shall not prejudice the  wife without her answer this court will not allow deposition take before  commissioner of bankrupt to be give in evidence here nor deposition take in  the ecclesiastical court and yet those court have the king authority to  examine witness curian nothing can make it evidence but the necessity of the  thing it be true in case of will it may be necessary to examine witness to  perpetuate their testimony but in this case the plaintiff be nonsuit upon  evidence viva voice and afterward exhibit a bill and obtain these deposition  upon examination of his own witness which be but paperevidence at the best and  therefore they incline not to allow it yet qure these deposition by the  opinion of the whole court be allow to be give in evidence which be do accord  note to former edition and with this S c Carthew and S c salk agree by the  report of this case in shower Gregory and eyres justice be clear of opinion  that these deposition be good evidence but holt chief justice and dolben  justice doubt it seem clear that deposition take in perpetuan rei memory can  be give in evidence unless there be a answer put in and produce t raym or even  though the witness after examination by order of court die before the answer  come in brown case Hardres unless the defendant appear to be in contempt bull  n p in the report of this case Carth it be say that the plaintiff have not  take out any process of contempt but it appear by S c salk that the defendant  be in contempt that the plaintiff thereupon have a commission to examine his  witness and that the defendant join in the commission and crossexamined some  of the witness and therefore S c show Gregory justice hold they to be good  evidence a modern er p