Vischer v. Conant , 4 Cow. 396 ( 1825 )

Curia, per

Savage, Ch. J.

It was decided in Ostrander v. Kneeland, (20 John. Rep. 276,) that, in dower unde nihil habet, view cannot be demanded of course; and it has been doubted whether it lies at all; (Booth on R. A. 38, and note, Anthon’s ed. Park on Dower, 286;) though the better opinion seems to be that it does. (Park on Dower, 286, and the authorities there cited in note.) And this is plainly implied by the statute, (1 R. L. 86, 7, s. 21,) which denies it “ when the dower in demand is of land that the husband aliened to the tenant, or his or her ancestors,, where the tenant ought not to be ignorant, what land the husband did alien to him or her.” In this case, the tenant denies that, to his knowledge or belief, the dowe/ demanded is of lands claimed by him, directly or indirectly, under the husband; and it is, thus far, we think, a case proper for a view. But is a view necessary 1 In such case .only is it to be granted. (1 R. L. 86.) And upon this question we must be governed by the circumstances of the case. This is the course in ejectment, where the form of the declaration is equally general as in this action For the purposes of view, the two cases are precisely similar ; and we think the same practice should be followed'in each, upon the question of granting it. This* Court have decided that they would not grant a view in the latter action, unless it appear that boundaries will -come-in question. (Wickham v. Waters, Col. Cas. 46.) Audit is difficult to perceive how a view can be necessary in any- other case. To ascertain the precise premises for which the plaintiff is proceeding, the constant course, in a-n-action of ejectment, is, to obtain a bill of particulars, which may bé dohe at any time before trial, on application to a Judge or Commissioner. (2 Archb. Pr. 48, 49, and the cases there cited.) This will answer all- the purposes of a view; in the present case. The object of the tenant is, to be advertised in which of the several tracts in Massena whereof he is possessed, the dower in demand lies. This proceeding, to obtain a bill of particulars, seems applicable to all actions in which the plaintiff declares generally, without specifying particularly his cause of action. (2 Archb. Pr. 198.) The only difficulty, in this stage of the proceeding, will be in saving to him his plea of non tenure, if the claim, should happen to relate to those lands of which-he is not seised. For this purpose, he should have obtained the order for particulars during his imparlance. Under thé. circumstances of this case, however, we will, if he wish it, grant him a special imparlance to the next term, to the end that he may obtain the particulars of the demandant’s claim as in other cases.

Hopkins said, as he did not wish the» specification with the view to a plea, but merely to the trial, he would plead the present- term, and take the course mentioned by the Court to obtain a bill of particulars to inform the defendant as to the trial.

Motion denied:^(a).

(a) There have been three decisions, previous to the one in,the-principal caso, npon the question when- a vie-w shall be. granted in real actions, .viz, The Freeholders and Inh. of Gravesend v. Voorhis, (1 John. Cas. 237;) Haynes v, Budd, (id. 335 i) and Ostrander v. Kneeland, (20 John. 276.) In the first, the kind of action does not appear; and the court lay down the general rule, which seems to be the w of West. 2, 13 ed. 1, ch. 48, (the Latin of which is in 2 Inst. 480,) transíated and enacted in 1 R. L. 86, s. 21, viz., that the tenant is entitled to have view as matter of right, and that it cannot be denied except in the cases mentioned in the statute. These cases are but few, viz., where a writ is brought to recover laud lost by default, or a second writ where the first was abated after view, provided the party had view in the first writs ; in dower, where the husband aliened to the tenant or his ancestor; upon a second writ of entry, after abatement for misnomer of the entry in the first, if there was view in the first; and in all writs demanding lands by reason of a demise made by the demandant or his ancestor, during certain disabilities, to the tenant. The technical moaning of each of these exceptions is considered in 2 Inst. 480 to 484. Haines v. Budd went on the same rule, holding that a view in a writ of right was of course. This ancient and narrow construction was broken in upon and done away by Ostrander v. Kneeland. By the old law, the tenant was, in real actions in general, prima facie, entitled to a view, (Booth, 37,) and this notwithstanding the statute of West. 2 ; and the only way to show the exception was by counterpleading it, (id. 38,) thus showing of record that the case was within some of the exceptions in the statute; whereas the practice is now altered to a form more convenient and conformable to modem practice in other cases ; the onus of showing the view to be necessary being thrown on the tenant, and the cases in which a view is to bo granted much narrowed. It is plain that the statute (1 R. L. 86,) applies to real actions generally, writs of right as well as dower; and this being so, the reasoning of the court in Ostrander v. Kneeland, and the principal case, seems to do away the two former cases.