Jackson ex dem. Coates v. Gauger — 6 Cow. 578

Majority

p. 578

Jackson, ex dem. Coates, against Gauger.

ALBANY,

Feb. 1827.

Headnote

S. A. Foot, for the defendant, moved for a view; and reacj an affidavit 0f the defendant’s attorney, that on the trial of this cause, an intricate question of boundaries would be inquired into ; and the cause could not be tried by a ;urv understandinely without a vi ew.

J. L. Wendell, contra, cited 4 Cowen, 397.

The affidavit, on moving for a view, m eject-merit, should thatTboundaries axe m question; but the particular circumstances which render a view necessary to the understanding of the cause by the jury ; so that the court may judge whether the view be necessary.

The affidavit is insufficient. By the statute, (1 R. L. 332, s. 21,) we may order a view when jt shall appear proper and necessary. Several decisions have limited these views in ejectment to cases where boundaries are in question. (Col. Cas. 46. 4 Cowen 396.) But this alone is not enough. Particular circumstances should be stated, in order that we may judge for ourselves, whether the view be necessary to a full understanding of the cause. The defendant here states merely his own conclusions.

In most cases, the evidence may be made quite as plain to a jury, in respect to boundaries, through proper surveys and diagrams, accompanied with the evidence of surveyors, and even more so, than by a view. We ought, therefore, to see that it is clearly necessary, before we subject parties to the delay and expense of this proceeding. The opinion of the party, or his attorney is not sufficient.

Per totam curiam,

Motion denied.