Faulk v. Wooldridge

Mathews J. delivered the opinion of the Court. This is a suit against one of the promissors on a note of hand, made by two persons in solido ; the signature of the defendant to the note was established, and judgment rendered against him, from which he appealed. The promise was made in consideration of the purchase of a tract of land, which the defendant in his answer, alleges to be deficient in quantity. On the trial of the case he demanded an order of survey from the Court to ascertain that fact, which was refused, and a bill of exceptions taken. The Judge a quo refused the order, because the application for it was not supported by the affidavit of the deficiency. In this we are of opinion he was correct. A plaintiff ought not to be delayed in the prosecution of his right, apparently just, by a bare suggestion of the kind contained in the defendant’s answer. It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.