Ridgely, for plaintiff, moved for a view and for a continuance of the cause to give time.
Cullen objected. The motion for a view is not a motion of course, but in the discretion of the court. The practice in England is under the statute of Ann, which has not been held to extend to this state.2 Tidd 846. Our own act of assembly (Digest 117,) does not affect the granting of a view, but only regulates the mode of conducting it when granted. So of the rule of court. The principle, therefore, of granting a view, is that it must be apparent to the court, that justice cannot be done without it. This must be shown the court, and a party cannot have the order as a matter of course. If a view should be granted, I would consent to send a jury to-morrow, or any day this term, so that no delay shall take place.
Ridgely. — I have regarded a view as essential in the action of waste, and have, therefore, prepared my cause accordingly; and so is the authority of Tidd, which states that a view shall be granted in waste, and without, affidavit. 5 Bacon Waste, K. In waste a view is incident to the action. With this opinion of the necessity of a view, I could not be prepared for trial at this term. As plaintiff, I can have no desire to delay the cause. In Wilson'sRed Book, it is stated, in a note, that a view in waste and also in ejectment, is a motion of course; though the chief justice added, he did not see the necessity of it.
Per curiam. The action of waste is rarely brought in this state, having been nearly superceded by the action of ejectment. But the action may yet be brought. The view could not be asked for in this action until issue joined; this is, therefore, the first term when such a motion could have been made. Without deciding that a view is incident to the action of waste, we can say that it would often be proper, and frequently necessary, for the jury to see the place wasted, as it is attended with the highly penal consequence of a forfeiture of the place wasted.
The Court, therefore, order a view, and continue the cause for that purpose; and we direct that the first twelve jurors on the panel returned to the next term, shall be the viewers, six of whom shall sit *Page 160 on the trial, allowing each of the parties to challenge three at the trial if he choose.