Majority
p. 431James Jackson, ex. dem. Peter Waggoner and others, v. James Murphy.
Headnote
EMOTT, moved for a rule, ordering the lessors of the plaintiff to permit a survey to be taken by the defendant of the boundaries, and marked trees of a patent under which he claimed, on an affidavit stat
p. 432
ing, that it was necessary for his defence to ascertain the lines of it, but that a person sent by him for that purpose, had been prevented by the agent of the lessors who derived title under an adjoining grant.
Were we to grant this application, Could we enforce the leave we had given ? Suppose an action of trespass brought, would this be a justification ? But, it does not appear to me, that our inference is necessary. The judge at the circuit would, upon the grounds now shown to the court, postpone the cause. You may, however, take your rule to stay proceedings, till the lessors of the plaintiff enter into a consent rule for having a survey made.