
    Duncan M‘Arthur, Plaintiff in Error, vs. Wesley S. Porter’s Lessee.
    A special verdict' was found by the jury, .upon which judgment was-.to be entered according as the opinion of tbe Court'might be upon the con- • struction of a certain deed,-.which déed, was. referred to, and made part . of the special -Ending of the jury, but'was not contained in the récord thereof.A deed formed a part of á bill of exceptions taken to the opi-nibn of the Court,- upon a motion for a hew trial 5 which bill of exceptiotis, with the said deed. Was contained in the record. The Court cannot judicially know that this is the same deed-which is referred to in the verdict of. the .jury, or what are,the other evidences of tide connected, with iti
    THIS casé came up by writ of error to' the Circuit Court ■of the District of Ohio, and was 'argued'by Mr. Baldwin', for the plaintiff in error, and by'Mr. Ewing, for the defendant-in ■ error. ■ The cause was remanded- to the Circuit Court in -consequence óf a defect in' the record, and no- opinions having been given by.the-Court upon-the points presented and discussed by the counsel; they are omitted;
   •Mr.. Chief Justice Marshall

delivered the opinion of the -Court:—

This was an ejectment in the Court for the seventh Circuit and District of Ohio,- in whioh the jury, found, a verdict in the following words : We the jufy find the'defendant guilty of the trespass and ejectment, in-the. declaration mentioned, and assess the plaintiff’s damages to six cents,, which verdict is thus rendered, subject .to the opinion of the Court on the question reserved, by consent of parties, as to so much of the land in controversy, as- is contained in the deed, of the sheriff of Ross county, to the said defendant, bearing-date the ..day of 1802, and upon that part of the land "included in said deed. If the opinion of the'Court on the question so reserved by .consent, shall be with .the .plaintiff, that the said deed is, not valid to pass the- land therein described, then we the jury find the defendant guilty of the trespass and ejectment in the declaration mentioned; accordingly, for that part also; and if the opinion of the Court thereon shall be in favour of the defendant,- that said deed, with the other evidences exhibited as partof said .title, is valid-to'pass the fee-to the defendant; then the jury find the defendant not guilty-of the trespass and ejectment in the said, declaration mentioned, as to that part of the lands and premises in controversy.”

This conditional verdict is. for the plaintiff, or defendant, acCording to the opinion of- the Couyt-on the validity of. a deed* with the other evidences exhibited as sart of said title. But this deed, and these other evidences of title are:not exhibited to the Court, ih such manner as to enable us to notice them. A deed does, indeed,. form a part of a bill of exception taken to the .opinión of the Court, on a. motion subsequently made for a new trial. But-the Court cannot know, judicially,, that this is the saíne' deed which is. referred to in the verdict, . .or what áre the other evidences of title which are connected with it. The verdict is too imperfect to! enable the Court to render judgment on it.

The judgment of the. Circuit Court is therefore reversed, and the cause remanded to the Circuit Court, with directions . to set aside the verdict, and to award a venire facias. di novo.-

This cause came on, &c. in consideration whereof, It. is the opinion of this Court, that the judgment of the.said Circuit Court.in this cause is erroneous,-because, the verdict, is imperfect. It is therefore considered and, adjudged by this Court, that the said, judgm.ent b'e, and the same is hereby reversed and annulled. And it is further ordered, that this causé be remanded to the said Circuit Court, with directions to award a venire facias de novo.  