Ligon v. Taylor , 41 Ky. 498 ( 1842 )

Judge Ewing

delivered the Opinion of the Court.

We think that the Chancellor, as a Court of equity of oiiginal jurisdiction, acted with severity in refusing time to take affidavits to sustain the exceptions. But much discretion is to be allowed with a view to a speedy adjustment of controversies: and this Court ought not to reverse for a rigid exercise of discretion in practice, unless it manifestly appears that injustice has been done.

The affi'davit of tho counsel is -too general and indefinite against the report of the three selected Commissioners, and the affidavits of six other witnesses as to the equality of tho division, to justify the interference of this Court. It only states the belief of the counsel that injustice has been done, and a belief that injustice can be shown by witnesses, without a specification of facts or a designation of witnesses by whom it can bo shown, and amounts to no moro than his opinion that the division is unequal and unjust. I-Iis opinion, against so strong an .array of witnesses on the other side, is not sufficient to justify a reversal; though he refers to the exceptions taken, and states his belief that they can be in the main sustained by proof, he does not state by what number of witnesses they can be sustained, or who the witnesses are, or what superior opportunity they had of knowing or ascertaining the value of the several portions allotted, over the witnesses who have deposed, so as to enable this Court to determine that injustice-has been done, or that the result would be different if the decree was open,ed and indulgence allowed to take further proof. • Upon such slender grounds., we do not feel at liberty to uproot the practice of the Chancellor, open his decree and send the case back for further experiment.

May 23. Wheatley and Duncan for appellants; Guthrie for appellee.

Decree affirmed with costs.