De Bene Esse

Definition and Citations:

Conditionally ; provisionally ; in anticipation of future need. A phrase applied to proceedings which are taken ex parte or provisionally, and are allowed to stand as well done for the present, but which may be subject to future exception or challenge, and must then stand or fall according to their intrinsic merit and regularity. Thus, “in certain cases, the courts will allow evidence to be taken out of the regular course, in order to prevent the evidence being lost by the death or the absence of the witness. This is called ‘taking evidence de bene esse.’ and is looked upon as a temporary and conditional examination, to be used only in case the witness cannot afterwards be examined in the suit in the regular way.” Hunt, Eq. 75; Haynes, Eq. 183; Mitf. Eq. PI. 52, 149.