VIEW, DEMAND OF. In most real and mixed actions, in order to ascertain the iden tity of land claimed with that in the tenant's possession, the tenant is allowed, after the demandant has counted, to demand a view of the land in question, or, if the subject of claim be rent, or the like, a view of the land out of which it issues.. Cora. Dig. View; 2 Saund. 45 b.
This right, however, ie confined to real or mixed actions ; for in personal actions the view does not lie. In the action of dower uncle nihil habet, It hae been much questioned whether the view be demand able or not ; 2 Sound. 44, n. 4 ; and there are other real and mixed actions in which It is not allowed. The view being granted, the course of proceeding was to issue a writ commanding the sheriff to cause the defendant to have a view of the land. The duty of suing out the writ lies upon the demandant ; and when the sheriff causes view to be made, the demand ant is to show to the tenant in all ways possible, the thing in demand, with its metes and bounds. On the return of the writ Into court, the demandant must count de novo—that is, declare again ; Com. Dig. Pleader (2 Y 3) ; and the pleadings proceed issue. This proceeding of demanding view le, In the present rarity of real actions, unknown in practice. It le said in Union P. R. Co. v. Botsford, 191 U. S. 251, 11 Sup. Ct. 1000g35 L. Ed. 734, that there are only two cases in the hooks (1 Arn. 244; 8 Dowl. Pr. C. 201) where orders to inspect a building were re quested. Both were refused.
The right to grant an application for the jury to view the premises during the trial of a case rests in the discretion of the trial judge ; Andrews v. Youmans, 82 Wis. 81, 52 N. W. 23 ; Saint v. Guerrerio, 17 Colo. 448, 30 Pac. 335, 31 Am. St. Rep. 320; Jenkins v.
R. Co., 110 N. C. 438, 15 S. E. 193 ; Leidlein v. Meyer, 95 Mich. 586, 55 N. W. 367. Where the facts are such that they can be accurate ly described to the jury the court may prop erly deny a request to view the premises ; Ohio & M. R Co. v. Wrape, 4 Ind. App. 100, 30 N. E. 428 ; Roberts v. Corn., 94 Ky. 499, 22 S. W. 845; Mise v. Corn. (Ky.) 80 S. W. 457, where a careful survey had been made and the place was 15 miles distant over mountain roads ; also where a motion is made to have the jury view the scene of an accident sev eral years after it happened, and where the condition of the premises had changed in the meanwhile; Stewart v. R. Co., 89 Mich. 315, 50 N. W. 852, 17 L. R. A. 539.
In an action of nuisance against a fertil izer company, it was held that an inspection of the premises was discretionary ; Junes v. Royster Guano Co., 6 Ga. App. 506, 65 S. E.
361. A request for a view of the place of an accident should not be made before the jury ; Hearn v. R. Co., 1 Boyce (Del.) 271, 76 Atl. 629. The trial judge may accompany the jury to the place of view ; Lee v. R. Co., 84 S. C. 125, 65 S. E. 1031.
It is error to tell the jury that the verdict may be based on what they saw, and not on the evidence ; Payson V. Milan, 144 Ill. App. 204; Keller v. Harrison, 151 Ia. 320, 128 N.
W. 851, 131 N. W. 53, Ann. Cas. 1913A, 300 ; but it is held that what they saw may be ap plied in determining the credibility of the testimony ; American States Security Co. v. Ry. Co., 139 Wis. 199, 120 N. W. 844.
The practice of directing a view should be exercised with caution, and a view not al lowed unless the jury cannot otherwise reach a just conclusion. Refusal to view the local ity of a fire is proper ; Illinois Cent. R. Co. v. Frost (Ky.) 124 S. W. 821.
In a controversy over the price of a cow, it was error to permit an Inspection of the cow, if she were not shown to be in the same condition as at the sale ;, Mitchell v. Rowley, 63 Misc. 643, 118 N. Y. Supp. 751; but it was held a proper exercise of discretion in an action for deceit in selling a mule, to per mit the jury to see the mule; Sulser v. Sayre, 4 Ala. App. 452, 58 South. 758 ; and in an ac tion for death by wrongful act, the widow's expectancy of life may be reckoned by the jury upon a personal inspection of her, in the absence of other proof ; Helena Gas Co. v. Rogers, 104 Ark. 59, 147 S. W. 473.
A view is not a right of the accused; State v. Hancock, 148 Mo. 488, 50 S. W. 112. The jury may not measure distances at the place in order to verify the evidence; State v. Mortensen, 26 Utah, 312, 73 Pac. 562, 633; a denial of a request for a view, made after the jury had retired, and with notice to the dis trict attorney, was proper ; State v. Sirmay, 40 Utah, 525, 122 Pac. 748 (where there was a statute).
In Pennsylvania (act of 1895), in proceed ings under eminent domain, either party may require a view of the premises.
Where, on a trial for murder, the jury viewed the locus of the crime, but the ac cused, at his special request, did not accom pany them, the court held that the view was not a part of the trial, and a conviction was affirmed ; People v. Thorn, 156 N. Y. 286, 50 N. E. 947, 42 L. R. A. 368 (on the ground that the view was not part of the trial). Au thority and reason are said to be the other way ; 12 Harv. L. Rev. 212, citing People v. Palmer, 43 Hun 401; People v. Bush, 68 Cal. 623, 10 Pac: 169.
See PHYSICAL EXAMINATION; JURY.