
    Donevant against Mothershed.
    
      ~~ It is incumber* “mpwníV11» ">sh,lh(‘eTiden<;e of its incorrect“fpiaifandsurveys that were at ^ madefaeiuí of verSty;va"dthagainstthe opinion ^heJfud&e>^ preji!dice.wltll0Ut
    This was an action of trespass to try titles to * two small islands in the Catauba River; and the OnlV question ox difficulty was, whether they x J 1 J were or were not included in the defendant’s 4 . grant? Ihe Jury, contrary to the opinion of the presiding Judge, found a verdict for the defend- . . , • ant; which, m effect, established the fact, that the islands were, included in the defendant’s grant. The report of the case, as it should, refers to the plats of re-surveys, and the accompanying explanations for the facts on this question of difficulty; and these, by the much lamented death of Mr. Hooker, who conducted the cause in the Court below, on the part of the defendant, have been lost.
   The opinion of the Court was delivered by

Mr. Justice Johnson.

In ordinary cases I should think, that this Court was bound to support a verdict, unless the party complaining of it was capable of demonstrating that it was erroneous, on the presumption that the Jury had decided correctly on a question which it was their peculiar province to decide. But in cases of this peculiar character, when the opinion of the presiding Judge, which though not conclusive, is entitled to great weight, and the verdict of the Jury, on a ques-lion within their province, are in direct opposition ; and especially, when the most important evidences on the point in dispute have been lost, without the fault of the party, strong reasons are furnished for sending this case back.

I am, therefore, of opinion, that the motion for a new trial ought to be granted, unshackled by any opinion on the disputed point, as from the partial view of it presented here, no' conclusive or satisfactory opinion can be formed.

Bay, Mott, Coleoch, and Cheves, J. concurred.  