Duhaime's Law Dictionary


De Bene Esse Definition:

To take something for what it is worth, such as evidence collected for the time being, in the absence of, but in anticipation of, litigation, admissibility to be determined when such thing is sought to be used against another at trial.

In The Camosun case, Justice Macdonald wrote:

"To do a thing de bene esse signifies allowing or accepting certain evidence for the present until more fully examined....

"It is regarded as an additional examination to be utilized if necessary only in the event that witnesses cannot be examined later in the action in the regular way. This evidence therefore was taken for what it was worth. The plaintiff was not bound to use it if he did not wish to do so."

Indeed, the most usual form of de bene esse is to take a deposition or an examination of a person in circumstances outside of litigation when the examination occurs, but in anticipation thereof.

Thus, in A-Dec Inc., Justice Bouck used these words:

"An examination de bene esse (is) an examination, out of court and before trial, of witnesses who are old, dangerously ill, or about to leave the country, on the terms that, if the witnesses continue ill or absent, their evidence be read at the trial, but if they recover or return, the evidence may be taken in the usual manner. In those instances, the witness is normally a willing witness."

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