
    
      FAULK vs. WOOLDRIDGE.
    
    APPEAL PROM THE SEVENTH JUDICIAL DISTRICT THE JUDGE OP THE SIXTH PRESIDING.
    In the progress of a suit on a note for the purchase money of a tract of land, the Court will not delay the proceedings to grant an order of survey, to ascertain the supposed interference of other claims,and on the bare suggestion of the defendant that it is deficient in quantity, without any affidavit to that effect.
    A plaintiff should not be delayed in the prosecution of his rights apparently just, by a bare suggestion of deficiency contained in the defendant’s answer.
    
      In the progress of a suit on a note for the purchase money of a tract of land, the court will not delay the proceedings to grant an order of survey, to ascertain the supposed interference of other claims, and on the bare suggestion of the defendant that it is deficient in quantity, without any affidavit to that effect.
    A plaintiff should not be delayed in theprosecution of his rights apparently just, by a bare suggestion of deficiency contained in the defendant’s answer.
    ■: On the 33d of June 1826, the defendant Wm. Wooldridge and J. J. Bowie, executed their joint note to Viney Faulk for $600 — for the purchase of two tracts of land containing 440 arpens.
    Western District.
    
      October, 1830.
    The defendant Wooldridge acknowledged his signature to the note, but alleges in his answer that some of the land is in dispute, and is claimed by one Girod : and prays security against eviction, before he shall be compelled to pay the note : he also moved the Court for an order of survey to ascertain the quantity of land in dispute, which was refused.
    
      R. C. Scott explained the case on the part of the plaintiff.
    
      Flint for defendant,
    submittéd it without argument.
   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.  